In re A.C.
Filed 9/11/12 In re
A.C. CA3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(San Joaquin
----
In re A.C., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
C068634
(Super.
Ct. No. 68698)
The minor A.C.
entered an admission to one of four allegations in a petition, was adjudged a
ward of the court within the meaning of Welfare and Institutions Code section
602,
and was granted probation. He
appeals. He contends that the matter
must be reversed and remanded because the juvenile court failed to conduct a
hearing on his suitability for deferred entry of judgment (DEJ). He also challenges the $227.50 in penalty
assessments as unauthorized and the 10 percent collection fee as having not
been orally imposed but added by the clerk.
We conclude that the minor’s conduct effectively rejected DEJ and that
the juvenile court was excused from making a suitability determination. The minor’s contentions with respect to the
assessments and fee are also rejected.
FACTUAL AND PROCEDURAL BACKGROUND
A petition filed
May 26, 2011, alleged that the minor came within the provisions of section 602
in that on May 24, 2011, he possessed a
firearm, a felony (count 1) and possessed ammunition, a misdemeanor (count
2), and that on December 28, 2010, the minor trespassed by entering and
occupying, a misdemeanor (count 3). A
form “Determination of Eligibility—Deferred Entry of Judgment—Juvenile,†filed
the same day as the petition, reflected that the prosecutor had determined that
the minor was eligible for DEJ. A form
“Citation and Written Notification for Deferred Entry of Judgment—Juvenile,â€
also filed the same day, gave the minor and his parents written notice of DEJ
procedures and the hearing on eligibility.
At the
27, 2011, the minor appeared with both parents. The court appointed counsel for the
minor. Counsel noted that she had discussed the allegations in the
petition with the minor who understood the nature of the charges and waived further
reading, arraignment and advisement of rights.
Counsel sought the minor’s release, commenting the family wanted him
home, the minor was almost 18 years of age, and the minor had not previously
been in trouble. The prosecutor objected
in light of the charges, including a loaded firearm, his plan to add an
additional charge of resisting a peace officer, and the fact that the minor was
a documented Sureno gang member. The
court denied the minor’s request for release.
Counsel denied the allegations, refused to waive time, and sought to set
the next hearing on jurisdiction as soon as possible. The court set the next hearing on
jurisdiction for June 1, 2011. No one mentioned DEJ. The minutes of the hearing, however, reflect
that the DEJ form was in the court file and that the minor was eligible.
On June 1, 2011, the prosecutor offered to settle the matter for the minor’s
admission to count 1 (possession of a firearm).
Instead, counsel refused to waive time and sought to set the
jurisdictional hearing and a suppression motion, stating that a confirmation
hearing was not required. The
jurisdictional hearing was set for June
16, 2011.
On June 3, 2011, counsel filed a
declaration of prejudice against Judge Urie.
On June 6, 2011, counsel filed a
evidence seized on May 24, 2011,
including the firearm and the ammunition.
An amended
petition filed June 8, 2011,
added an allegation that on May 24,
2011, the minor resisted, obstructed, and delayed a peace officer,
a misdemeanor (count 3). The December
2010 trespassing allegation was renumbered as count 4 in the amended
petition.
On June 10, 2011, the minor waived
formal arraignment and advisement of rights.
There is no reporter’s transcript on appeal for this proceeding.
At the June 16, 2011 hearing on the minor’s
suppression motion, to be immediately followed by the contested jurisdictional
hearing, counsel challenged the minor’s detention, the search and his
arrest. About 7:30 p.m. on May 24,
2011, Lodi Police officers were patrolling a high gang area where
gang shootings had been reported earlier that day. The minor was standing in an alley. The minor gave his name and date of birth but
when asked if he had anything illegal, he turned and started to run away. An officer tackled the minor who reached for
a loaded handgun in his waistband.
According to the minor, the officer asked if he was on probation and
would consent to a search. The minor
claimed he did not agree to a search, walked away, and ran when one officer
grabbed him.
The court denied
the minor’s suppression motion. The
court noted that the contested jurisdictional hearing would have to be
continued because there was no more time that day. Counsel stated that she had numerous cases
the next morning and then was scheduled to leave town for a week. She requested that the minor be released on
the electronic monitoring program pending the continued jurisdictional hearing
so that he could care for his siblings.
The court declined to release the minor and suggested that the matter be
heard the following day at 11:00 a.m. if there was time after the court
finished its calendar. Counsel requested
time to speak to the minor. After a
pause in the proceedings, the prosecutor advised counsel that the original
offer—admission to count 1—was still open.
Counsel advised the court that the minor was prepared to admit count 1,
possession of a firearm, a felony. The
court obtained the minor’s waiver of his constitutional rights and his
admission to count 1. The remaining
counts were then dismissed in the interest of justice. Counsel refused to waive time for the
dispositional hearing, which was then set for June 29, 2011. The court ordered the minor to remain
detained in juvenile hall.
At the
dispositional hearing on June 29, 2011, the parties submitted on the probation
officer’s report. The court granted
probation with a maximum confinement time of three years and subject to certain
terms and conditions including 60 days in juvenile hall with 30 days of credit
for time served, an additional 30 days suspended pending school review, 45 days
on electronic monitoring after the minor was released, and an order that the
minor participate in the work project while at juvenile hall. The court ordered the minor to pay a $100
restitution fine (§ 730.6, subd. (b)(1)) with a 10 percent collection fee
(§ 730.6, subd. (q)) and a $100 fine for deposit in the county’s general
fund (§ 731, subd. (a)(1)) plus assessments totaling $227.50.
DISCUSSION
I. Hearing on
Suitability for DEJ
The DEJ
procedure has been succinctly summarized in Martha C.
v. Superior Court (2003) 108 Cal.App.4th 556 at pages 558 to 559 as
follows:
“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).)
“Section 790
makes a minor eligible for DEJ 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.’ (§ 790, subd. (a)(1)-(6).)
“If the minor
waives the right to a speedy jurisdictional hearing, admits the charges in the
petition and waives time for pronouncement of judgment, the court may summarily
grant DEJ or refer the matter to the probation department for further
investigation. The department is
required to take into consideration ‘the defendant’s age, maturity, educational
background, family relationship, 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.’ (§ 791, subd.
(b).) The trial court makes ‘the final
determination regarding education, treatment, and rehabilitation of the
minor.’†(Accord, In re Kenneth J. (2008) 158 Cal.App.4th 973, 976-977 (
For the first
time on appeal, the minor contends the juvenile court failed to either
summarily grant DEJ or conduct a hearing on his suitability for DEJ, requiring
reversal and remand. The People respond
that the minor has forfeited any entitlement to DEJ by failing to raise it
below, the minor was not eligible for DEJ because he did not admit each
allegation of the wardship petition, and the minor did not consent to DEJ
because the matter proceeded to a dispositional hearing and he did not waive
time for entry of judgment. In reply,
the minor claims he did not forfeit or waive a DEJ determination because the
record fails to demonstrate that personal notice was provided. The minor also argues it is not his
obligation to initiate the DEJ process.
We conclude the
minor has failed to demonstrate that he did not receive notice of his
eligibility for DEJ. We also conclude
that the minor effectively rejected DEJ by his conduct of refusing to waive
time for the jurisdictional hearing, by admitting only one of four allegations
of the amended wardship petition, and by refusing to waive time for the
dispositional hearing.
In determining
that the minor was eligible for DEJ and providing the written notification
required by section 791, the prosecutor complied with the requirements of
section 790, subdivision (b) and California Rules of Court, rule 5.800(b).
of Eligibility†form and the “Citation and Written Notification†form. In his reply brief, the minor claims the
record does not demonstrate that he or his parents had notice of his DEJ
eligibility. He argues there is no proof
of service in the record on appeal demonstrating that the “Citation†form was
served on him or his parents.
Welfare and
Institutions Code section 790, subdivision (b) provides that the prosecutor
“shall make this information [about the minor’s eligibility for DEJ] available
to the minor and his or her attorney.â€
rule 5.800(c) provide that the court is required to have the “Citation†form personally
served on the parents. The fact that a proof of service is
not included in the clerk’s transcript does not prove there is no proof of
service. Rule 8.407(a) does not require
that a proof of service be included in the clerk’s transcript on appeal. The minor did not seek to augment the record
to demonstrate that a proof of service does not exist. It is the minor’s “burden to provide this
court with a complete record on appeal.â€
(In re Joshua S. (2011)
192 Cal.App.4th 670, 681, fn. 7 (Joshua
S.).) Absent a contrary showing, we
presume that official duty is
regularly performed. (Evid. Code,
§ 664.) In rebuttal, the minor
offers that DEJ forms were not mentioned at the detention hearing and counsel
did not acknowledge receipt of the notice of the minor’s eligibility. Although not orally mentioned, the minutes
reflect the clerk’s notation that the DEJ form was in the court’s file. The minor was represented by counsel who
presumably knows the law and thus would have known about DEJ procedures. The minor does not raise an ineffective
assistance of counsel claim on appeal.
The minor was present at the detention hearing as were his parents. On this record, we conclude that the minor
has failed to demonstrate that he did not receive notice of his eligibility for
DEJ.
With DEJ, a suitability determination would
require the court to consider the prosecutor’s declaration, probation’s report
and recommendation, and any other material provided by the minor and interested
parties. The minor would have to consent
and waive his right to a speedy jurisdictional hearing. (§ 791, subd. (b).) The minor’s conduct, here, effectively
rejected DEJ. Every step of the way, the
minor’s counsel was pushing the matter in order to obtain the minor’s release
from custody. The minor did not waive
his right to a speedy jurisdictional hearing.
In fact, at every hearing, counsel refused to waive time. At the combined hearing on the suppression
motion and jurisdictional hearing, when it became necessary to continue the jurisdictional
portion of the hearing due to the lack of time remaining on the court’s
calendar, the minor chose instead to enter an admission and then to only one
out of the four counts alleged against him.
The transcript of the hearing on the suppression motion reflects that
the prosecution had ample evidence to prove the other related counts.
The minor’s conduct reflects that he did not consent to DEJ
procedures. Indeed, he never requested
DEJ. (Cf. In re A.I. (2009) 176 Cal.App.4th 1426, 1429-1432, 1435.)
J.,
a juvenile court can start the DEJ process in the teeth of the minor’s
opposition—in effect, that the DEJ procedure can be forced on an unwilling
minor. That is clearly illogical, as
there is nothing in the statutory language of section 791 or California Rules
of Court, rule 5.800 which suggests that a minor can be compelled to accept
DEJ. Or to put it conversely, the
language in the statute and rule 5.800 requires some measure of consent. [¶] It
is perhaps true the DEJ statutes make no express provision for a minor in
Kenneth’s position, one who is advised of his DEJ eligibility, who does not
admit the charges in the petition or waive a jurisdictional hearing, and who
does not show the least interest in probation, but who insists on a
jurisdictional hearing in order to contest the charges. But the DEJ is clearly intended to provide an
expedited mechanism for channeling certain first-time offenders away from the
full panoply of a contested delinquency proceeding. That goal could not coexist with a minor who
insists on exercising every procedural protection offered, and who then on
appeal faults the juvenile court for not intervening and short[-]circuiting
those very protections. This would place
a juvenile court in an impossible ‘Heads he wins, tails I lose’ situation—not
to mention apparently compelling a juvenile court to hold a hearing to consider
DEJ for a minor who evinces no interest whatsoever in that option. We decline to adopt such a mischievous, if
not self-defeating, construction.†(
re Usef S. (2008) 160 Cal.App.4th 276, 285-286.) Like Kenneth J.,
the minor here “evince[d] no interest whatsoever†in DEJ. (Kenneth J.,
The minor
misplaces his reliance upon Joshua S.,
litigate the petitions, never requested a jurisdictional hearing, and admitted
the allegations of the amended wardship petitions which reduced the
charges. (Id. at pp. 674, 679, 681.)
Here, the minor insisted on a jurisdictional hearing from the very
beginning, which would have proceeded but for the lack of time after the court
heard the suppression motion. Moreover,
the minor did not admit all the counts; he admitted only one of the four counts
of the amended petition. The charge was
not reduced. After the minor entered his
admission, the remaining counts were dismissed in the interest of justice. The minor refused to waive time for the
dispositional hearing. In this
situation, the juvenile court was not required to determine the minor’s
suitability for DEJ because the minor’s actions “were tantamount to a rejection
of DEJ.†(Kenneth J., supra,
II. Penalty
Assessments
The minor
contends the order that he pay $227.50 in penalty assessments was
unauthorized. We reject this claim. His entire argument is based on a faulty
premise, that is, the court imposed two $100 restitution fines.
While the court
imposed a $100 restitution fine pursuant to section 730.6, subdivision (b)(1),
the court also imposed a $100 general fund fine pursuant to section 731,
subdivision (a)(1). The $100 general
fund fine is not a restitution fine.
Instead, it is more akin to a crime fine. The $227.50 in penalty assessments attached
to the $100 general fund fine, not the $100 restitution fine. The penalty assessments on the general fund
find were recommended and broken down in the dispositional report. At the disposition hearing, the parties
submitted on the dispositional report.
The court adopted the recommendations of probation, incorporating them
by reference, and ordered the penalty assessments of $227.50 as broken down in
the report.
title="">[7] We find no error.
III. Collection
Fee
Finally, the
minor challenges a 10 percent collection fee imposed pursuant to section 730.6,
subdivision (q). We reject the minor’s
contention that the clerk added the fee out of whole cloth. Although the 10 percent collection fee was
not specifically cited by the court when it ordered the restitution fine, the
dispositional report specifically recommended the collection fee, the court
adopted the recommendations in the report, incorporating them by reference, and
the minor submitted on the dispositional report. Under the circumstances, we find no
error.
DISPOSITION
The adjudication and orders of the juvenile court are
affirmed.
BUTZ , J.
We concur:
ROBIE , Acting P. J.
MURRAY , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] The “Citation†form reflects clerical errors,
referring to the petition as having been filed on “11/26/11†(instead of May
26, 2011) and a hearing which was scheduled for “11/27/11†at 1:30 p.m. rather
than the hearing which was held on May 27, 2011, at 1:30 p.m. at which the
minor and both parents appeared.
