In re J.T.
Filed 2/24/12 In re
J.T. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
In re J.T., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.T.,
Defendant and Appellant.
C067154
(Super.
Ct. No. 68129)
Following a
contested jurisdictional hearing, the
juvenile court sustained a charge that the minor J.T. (minor) possessed a
short-barreled rifle, a felony (Pen. Code, § 12020, subd. (a)(1)). Having previously found minor unsuitable for
deferred entry of judgment (DEJ), the juvenile court denied minor’s request to
reduce the offense to a misdemeanor and adjudged him a ward of the court. The juvenile court removed minor from his
parents’ custody, committed him to the Juvenile Hall for 60 days with 28 days
of credit, declared the maximum term to be three years, and placed him on
probation, subject to various conditions.
On appeal, minor
contends the juvenile court’s decision to deny his request for deferred entry
of judgment was an abuse of discretion; minor further contends that the fines
listed in the minute order but not pronounced at disposition should be
stricken. We disagree with the first
contention, but agree with the second, and shall affirm the judgment but order
the disposition order corrected accordingly.
On May 31, 2010, minor’s stepfather
discovered minor had several tattoos.
The stepfather then searched minor’s room and found what he thought was
a BB gun. Minor left the house, and the
stepfather called police to report that minor had run away.
The stepfather
gave the gun, a .22-caliber bolt action Mossberg 146B rifle, to the
police. The barrel was cut off, and the
rifle was less than 26 inches long. The
trigger and stock were cut off, and electric tape was wrapped around the rifle
to act as a grip.
Minor was detained,
and then released on electric monitoring on June 7, 2010. He
was placed on less restrictive home supervision on July 28, 2010. On August 24,
2010, minor left home for two days without permission. He was suspended from school for two days
after “doing a ‘Norteño
handshake’” on
August 26, 2010.
The juvenile court authorized a bench warrant for his arrest on August 27, 2010.
The probation
department prepared a report on minor’s eligibility for DEJ on September 2, 2010, which set forth the
following facts:
Minor was born in
November 1994. On April 28, 2009, when Stockton
police intervened in a fight between minor’s brother and stepfather, minor
struck an officer in the throat.
On February 22, 2008, minor choked
a classmate at school until the boy lost consciousness. The victim reported that he was walking home
when he noticed minor with a group of children at a corner. When the victim approached, minor began
pushing him, ignoring the victim’s repeated requests for minor to stop. Minor eventually got behind the victim and
choked him. School officials said that
minor usually bullied other children, including this victim.
Minor admitted to
being a member of the Norteño street gang. He was associated into the gang at eighth
grade, and “jumped into” the gang in the year before the current offense. He purchased the rifle for his own protection
after getting jumped by members of another gang.
The probation
department recommended against DEJ.
The dispositional
report related largely the same information, but noted that minor had no
problems since his predisposition release on September 29, 2010.
I
Minor first
contends it was an abuse of discretion for the juvenile court to deny DEJ. We disagree.
A minor who meets
the criteria provided in Welfare and Institutions Code
section 790 is eligible for DEJ. (
108 Cal.App.4th 556, 558-559 (Martha C.).) “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.’ [Citation.]
The [juvenile] court makes ‘the final determination regarding education,
treatment, and rehabilitation of the minor.’
[Citation.]” (
at p. 559; see In re Kenneth J.
(2008) 158 Cal.App.4th 973, 976-977.)
“[D]enial of
deferred entry of judgment is not an abuse of discretion merely because the
minor has satisfied the eligibility requirements of section 790, subdivision
(a), and [California Rules of Court,] rule [5.800(a)]. Instead, the court makes an independent determination
after consideration of the ‘suitability’ factors specified in rule
[5.800(d)(3)(A)(i)] and section 791, subdivision (b), with the exercise of
discretion based upon the standard of whether the minor will derive benefit
from ‘education, treatment, and rehabilitation’ rather than a more restrictive
commitment. [Citation.]” (In re
Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. omitted (
Here, minor relies
on Martha C., in which the Court of
Appeal reversed the juvenile court for denying DEJ on the basis of deterring
criminal activity, even though the court and probation department felt the
minor would benefit from treatment and education. (Martha
C., supra, 108 Cal.App.4th
at p. 562.) Minor contrasts
minor’s gang membership, criminal conduct, criminal association with others,
and drug addiction. (
According to
minor, his case is more like Martha C.
than Sergio R. He notes that he is in a “fairly stable
home,” his crime involved no one else and no gang members, and he is not
involved with drugs. He concludes the
juvenile court “lost track of the main goal,” rehabilitation of nonviolent
first time offenders, and instead focused on minor’s conduct in running away
from home.
Minor is an
admitted member of the Norteño
street gang. His offense was directly
related to gang activity. Although he
has no prior criminal record, he has a serious history of assaultive conduct. When placed on less restrictive custody
following his detention for the current offense, he ran away and also was
suspended from school for gang activity, causing the juvenile court to issue a
bench warrant. While the record reflects
that minor was subsequently returned to house arrest, a less restrictive
alternative, this decision was made after
the juvenile court denied DEJ, rendering it irrelevant to our review of the
decision to deny DEJ. (See
1048, 1070, disapproved on another point in People
v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [A reviewing court “focuses
on the ruling itself and the record on which it was made. It does not look to subsequent matters . .
.”].)
An abuse of
discretion occurs only when the court exceeds the bounds of reason in light of
all of the surrounding circumstances. (
68, 72.) In light of minor’s gang
membership, the gang-related nature of his offense, his initially poor
performance on less restrictive custody, and his gang activity after his
detention, it was not an abuse of discretion for the juvenile court to find the
minor unsuitable for DEJ.
II
The juvenile court
did not impose any fines or fees when it orally pronounced the disposition. The minute order includes a $100 restitution
fine (§ 730.6, subd. (b)(1)), a $100 fine payable to the general fund of
San Joaquin County, and a $227.50 state penalty assessment (Pen. Code,
§ 1464).
Minor contends the
fines are unauthorized and must be stricken, as they were not included in the
oral disposition. We agree.
The judgment is in
fact the oral rendition of sentence. (
26 Cal.4th 181, 185.) The abstract
or minute order is not the judgment and is not controlling. (Ibid.) Fines are part of the judgment. (People
v. Hong (1998) 64 Cal.App.4th 1071, 1080.) Since the juvenile court did not pronounce
any fines, there were none included in the judgment.
Accordingly, we
shall order the disposition order corrected to strike the $100 fine to
County and the $227.50 state penalty assessment.
The judgment is
affirmed. The minute order of
disposition is ordered corrected to strike the $100 fine payable to the San
Joaquin County general fund and the $227.50 state penalty assessment (Pen.
Code, § 1464). The juvenile court
is ordered to prepare a corrected disposition order and forward certified
copies to the relevant authorities.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Welfare and Institutions Code.
name="_ftn2" title="">[2] The $100 restitution fine pursuant to section
730.6 is mandatory. (§ 730.6,
subds. (a)(2)(A), (b)(1); In re Enrique
Z. (1994) 30 Cal.App.4th 464, 467.)
If the trial court does not impose a mandatory fine, we may impose it on
appeal. (People v. Rodriguez (2000) 80 Cal.App.4th 372, 376.) We shall do so here.
