>In re Jose
R.



















Filed 4/2/13 In re Jose R. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 JOSE R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. JOSE R., Defendant and Appellant.	F065768 (Super. Ct. No. JJD065969) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Juliet L. Boccone, Judge.

Gabriel C.
Vivas, 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, Assistant Attorney General, and Kathleen A. McKenna, Deputy
Attorney General, for Plaintiff and Respondent.



>-ooOoo-

It was
alleged in a juvenile wardship petition
(Welf. & Inst. Code, § 602)href="#_ftn2"
name="_ftnref2" title="">^[1] filed January 25, 2012, that appellant, Jose
R., a minor, committed two counts of violating Penal Code section 288,
subdivision (a) (lewd or lascivious act upon a child under the age of 14). On March 19, 2012, the Tulare County District
Attorney filed a notice stating appellant was eligible for deferred entry of
judgment (DEJ) under section 790, et seq.
That same day, appellant admitted the allegations of the petition, and
the court found the allegations true and referred the matter to the Tulare
County Probation Department for a report and recommendations. The probation officer’s report (RPO) was
filed on April 13, 2012, and on April 17, 2012, at a contested hearing, the
court found appellant unsuitable for DEJ, adjudged him a ward of the court and
placed him on formal probation.

On appeal,
appellant’s sole contention is that the court abused its discretion in finding
appellant unsuitable for DEJ. We affirm.

BACKGROUND

>The Instant Offenseshref="#_ftn3" name="_ftnref3" title="">^[2]

Appellant
admitted he committed the instant offenses between August 1, 2011, and November
15, 2011. He was 13 years old during
that time frame. The two victims are
appellant’s nieces.

One of the
victims (Victim No. 1) told an investigator that appellant touched her in the
area of her rump and her vagina on approximately six occasions, and “each
incident occurred when she had clothing on.”
In addition, appellant “would sometimes wipe his hands on her
body.” Through the use of a drawing of a
naked girl, Victim No. 1 indicated that appellant “would sometimes wipe his
hands” on her “abdomen, hand, legs and back.”
These incidents “usually occurred at night … when people [were] asleep,
including her.” Victim No. 1 “also
reported [appellant] ha[d] put his tongue in her mouth.”

The other victim (Victim No. 2)
told an investigator the following:
Appellant “did the same thing to her that he had done to her
sister.” On the first such occasion,
which occurred when she was seven years old, she was asleep, but awoke when
“she felt someone touching her.” She
looked up and “saw [appellant] over her.”
She went back to sleep. “She also
revealed [appellant] touched her private area on top of her clothing.” The “same thing” occurred a second time when
she was eight years old.

Appellant
told the probation officer the following:
On one occasion “he … took [Victim No. 1’s] underwear and began to touch
her.” [Sic.] On another occasion,
while lying on a bed next to Victim No. 1, he “was getting ready to touch her
under her clothes, but decided not to.”
He could not remember “touching” Victim No. 2, but “it could have
occurred” one to two years ago.
Appellant stated he “began to wonder what women[’s] private parts
look[ed] like,” and he “indicated he touched [the victims] on their vagina area
because he was curious and did not have an adult male individual to talk
to.”

Additional Factual Background

As “Mitigating
Circumstances,” the probation officer listed the following: Appellant has no “prior record,” he “does not
have substance abuse issues,” he “does not have gang issues,” he “appears to
have no behavior or attendance issues at school,” and he “expressed remorse for
his actions.”

As “Aggravating
Circumstances,” the probation officer stated appellant “was an active
participant” and that he “took advantage of the position of trust or confidence
to commit the crime.”

The
probation officer also stated the following:
Appellant “appears to have age-appropriate developmental skills,” he and
his mother reported appellant is “seeking counseling at Tulare Youth Services
Bureau,” and appellant “reported his motivation to successfully complete the
[DEJ] Program is to have the [f]elony[] removed from his … record.”

Probation Officer’s Recommendation

The
probation officer stated: “The Probation
Department is concerned that [appellant] admitted to touching the victims
several times.… [¶] … [¶] ... While
considering [appellant’s] age, maturity, educational background, family
relationships, demonstrable motivation, treatment history, and other mitigating
and aggravating factors[,] the Probation Department determined the minor is not
a suitable candidate for the [DEJ] Program.
It is apparent [appellant] needs to receive services to address his
issues, while in a highly supervised and structured environment, which would
not be available by placing him on the [DEJ] Program.”

The
probation officer also stated: “The
Probation Department strongly considered recommending [appellant] be adjudged a
Ward and placed in a Group Home, Foster Home, or in the Home of a Suitable
Relative. However, [appellant’s] mother
and family have expressed a willingness to … provide a secure and structured
environment for [appellant] and will be provided additional assistance and
supervision by the assigned probation officer.”


Juvenile Court’s Ruling

In finding
appellant unsuitable for DEJ, the court, addressing appellant, stated: “I do have an obligation to put you in the
least restrictive environment in order for the Court is going to be successful
in your rehabilitation. [>Sic.]
I have an obligation to the community for their safety, as well. [¶] I
think that based on what the Court knows of the various programs available to
you, I do believe that … the structure of the probation would be certainly more
likely to be successful … in getting you so you are not going to offend
again.”

DISCUSSION

Legal Background

The DEJ
provisions have been explained as follows:
“The DEJ provisions of sections 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 name="citeas((Cite_as:_108_Cal.App.4th_556,_*5">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.)

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.) 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
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).)href="#_ftn4" name="_ftnref4" title="">^[3]

After
eligibility is determined, “[t]he trial court … has the ultimate discretion to
rule on the suitability of the minor for DEJ after consideration of the factors
specified in [California Rules of Court, rule 5.800] and section 791,
subdivision (b), and based upon the ‘“standard of whether the minor will derive
benefit from ‘education, treatment, and rehabilitation’ rather than a more
restrictive commitment.
[Citations.]”’” (>In re Luis B. (2006) 142 Cal.App.4th
1117, 1123 (Luis B.).) The factors set forth in section 791, subdivision (b) are: “[the minor’s] age,
maturity, educational background, family relationships, demonstrable
motivation, treatment history, if any, and other mitigating and aggravating
factors .…” (§ 791, subd.
(b).) California Rules of Court, rule
5.800(d)(3) identifies those factors, in virtually identical language, as “The
child’s age, maturity, educational background, family relationships,
motivation, any treatment history, and any other relevant factors regarding the
benefit the child would derive from education, treatment, and rehabilitation
efforts .…” (Cal. Rules of Court,
rule 5.800(d)(3)(A)(i).)

The
determination to grant or deny DEJ may be reversed only upon a showing of abuse
of discretion. (In re Sergio R., supra, 106
Cal.App.4th at p. 607.) Judicial discretionname="SR;4665"> is abused only if it results in an arbitrary or capricious
disposition, or implies whimsical thinking, and “exceeds the boundsname="SR;4687"> of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d
68, 72, citations omitted.)

Analysis

Appellant raises a number of
challenges to the juvenile court’s finding that he was unsuitable for DEJ. First, he argues the court “>failed to consider whether [appellant]
is amenable to education, treatment and rehabilitation .…” It appears that appellant bases this
contention, in turn, on claims that the court made no on-the-record finding
that appellant would “derive benefit from ‘education,
treatment, and rehabilitation’ rather than a more restrictive commitment,” the
court’s remarks about rehabilitation were “vague and uncertain,” and the court
“failed to address” on the record “the key issue of whether [appellant] would
or would not benefit from rehabilitation efforts, or how they would be worsened
if he were granted DEJ.”

Appellant
has not established that the court failed to consider any relevant factor. The RPO contained information
concerning appellant’s education and the treatment he was receiving, as well as
other information relevant to the issue of rehabilitation. The absence of an on-the-record discussion of
all information the court considered does not establish the court failed to
consider relevant information. (Cf. >In re Ricky H. (1981) 30 Cal.3d 176, 191
[where minor committed to California Youth Authority and there was evidence in
record of possible less restrictive placements, juvenile court’s failure to
state on the record its consideration of such placements did not establish
failure to consider them].) Moreover,
contrary to the implicit premise of appellant’s argument, there is no
requirement of on-the-record findings, and we will not impose such a
requirement by fiat.

Appellant
also argues that “[t]he Court’s comments seem to suggest” that the court failed
to consider that “the statutory DEJ scheme permits the juvenile court to impose
the supervision it deems necessary for [appellant’s] rehabilitation.” The legal basis for this claim is section 794
which, as appellant asserts, allows the court to impose the same conditions of
probation regardless of whether a minor receives DEJ probation or formal
probation.href="#_ftn5" name="_ftnref5"
title="">^[4]

Although
appellant correctly characterizes section 794, his claim that the record
compels the conclusion that the court was unaware of its provisions is without
merit. The implicit major premise of
this claim appears to be that because there is no difference between DEJ
probation and formal probation with respect to the conditions of probation that
can be imposed, a minor for whom formal probation is appropriate, is
necessarily suitable for DEJ. This
premise is false. As indicated above,
application of the standard for determining suitability for DEJ requires the
court to determine whether a minor is in need of a “‘“more restrictive
commitment’”” than DEJ. (>Luis B., supra, 142 Cal.App.4th at p. 1123.)
It is not simply the conditions of probation that can be imposed that
determine whether formal probation is more restrictive than DEJ. For example, under the DEJ program, a minor’s term of probation may
extend no longer than 36 months “from the date of the minor’s referral to the
program” (§ 791, subd. (a)(3)). By
contrast, for a minor who, like appellant, is adjudged a ward of the court for
an offense not listed in section 707, subdivision (b), the probationary period
may extend “until the ward … attains 21 years of age .…” (§ 607, subd. (a).) Thus, for appellant, who was 14 years old at
the time of the DEJ hearing and is therefore potentially subject to the court’s
jurisdiction for a far longer period than if the court had granted DEJ, formal
probation is more restrictive.
Accordingly, a finding that formal probation is appropriate does not
lead necessarily, as appellant suggests, to the conclusion the minor is
DEJ-suitable. For that reason, finding a
minor unsuitable for DEJ, while at the same time placing the minor on formal
probation, does not give rise to a reasonable inference that a court making
such an order is unaware of the scope of its authority under section 794. Nothing in the record here suggests the court was unaware of the provisions of section 794.

Appellant
also argues that there was “no evidentiary support” for the court’s
unsuitability finding. In this regard,
appellant asserts that the RPO does not “explain[]” what “services” were
available on formal probation but were not available on DEJ, “what issues
specifically needed to be addressed,” “why appellant would not benefit from the
services under the DEJ program,” and “why appellant was unsuitable for
DEJ.”

We
recognize that the RPO contains no information on the specific services available to a formal probationer but unavailable
under DEJ. However, in the RPO the
probation officer opined that appellant was in need of services in a “highly
supervised and structured environment,” and stated that such services were not
available under DEJ. In addition, it is
reasonably inferable from the RPO that in the probation officer’s view, the
probation department, in conjunction with appellant’s mother, could provide
such services to appellant while appellant was on formal probation. In our view, despite the lack of detail and
specificity in the RPO, the court could reasonably conclude, based on the
content of the RPO, that the services appellant needed were not available under
DEJ. Moreover, we note that appellant
admitted to two counts of an offense—Penal Code section 288, subdivision
(a)—serious enough to be classified as both a “violent” (Pen. Code, § 667.5,
subd. (c)(6)) and “serious” (Pen. Code, § 1192.7, subd. (c)(6)) felony, and
that the probation officer found two circumstances in aggravation, both of
which are supported by the record. On
this record, it was well within the court’s discretion for the court to
conclude that appellant was unsuitable for DEJ because appellant was in need of
services beyond the scope of those provided under DEJ, and because, given the
seriousness and circumstances of the instant offenses, DEJ, with its three-year
limit on the length of the probationary period, was not adequate to provide for
appellant’s rehabilitation.

Finally,
appellant argues the court abused its discretion because the court found
appellant ineligible for DEJ based on certain “impermissible factors” viz.,
“public safety,” the court’s “personal view of the DEJ program,” and the
court’s desire to “punish appellant more severely than provided by law based
solely upon the personal reasons of the judicial officer .…” We disagree.

As
indicated above, the determination of suitability for DEJ must be based upon the “‘“standard of whether the minor will derive
benefit from ‘education, treatment, and rehabilitation’ rather than a more
restrictive commitment.
[Citations.]”’” (>Luis B., supra, 142 Cal.App.4th at p. 1123.)
Nothing in the court’s comments supports the claim that the court based
its denial of DEJ on a desire to punish appellant, rather than an application
of this standard.

In
addition, public safety is not an improper consideration in a wardship
proceeding. Appellant has come within
the jurisdiction by virtue of his commission of the instant offenses (§ 602,
subd. (a)), and section 202 provides, in relevant part, “Minors under
the jurisdiction of the juvenile court as a consequence of delinquent conduct
shall, in conformity with the interests of public
safety and protection, receive care, treatment, and guidance that is
consistent with their best interest, that holds them accountable for their
behavior, and that is appropriate for their circumstances” (§ 202, subd.
(b), italics added).

Finally, we reject appellant’s
contention that the court impermissibly based its finding of unsuitability for
DEJ on the court’s “personal view of the DEJ program.” Appellant apparently bases this contention on
the court’s statement, “I think that based on what the Court knows of the
various programs available to you, I do believe that … the structure of the
probation would be certainly more likely to be successful … in getting you so
you are not going to offend again.” The
“various programs” the court refers to here, it appears, are those the court
believed were available under formal probation.
We recognize there was no evidence presented concerning those programs,
and that apparently the court was speaking based on its knowledge of how formal
probation is conducted in Tulare County.


However, we do not interpret the
court’s comments as a statement that the court relied exclusively on this
outside-the-record information. As
demonstrated above, the record contains ample support for the conclusion that
given the seriousness and circumstances of the instant offenses; the probation
officer’s statement, which the court reasonably could credit, that the services
available under DEJ were not adequate to meet appellant’s needs; and the
potential for extended supervision under formal probation, it cannot be said
that the court’s finding of unsuitability exceeded the bounds of reason. Accordingly, we uphold the court’s
determination.

DISPOSITION

The
judgment is affirmed.