L.
Filed 6/3/13 In re Rudy L. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 RUDY
L., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
RUDY L.,
Defendant and
Appellant.
F065214
(Super.
Ct. No. 09CEJ600097-2)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Rosendo Peña, Judge.
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, Assistant Attorney General, Catherine Chatman and Raymond
L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
The court
found appellant, Rudy L., was a person described in Welfare and Institutions
Code section 602 after he admitted allegations charging him with
2/Health & Saf. Code, § 11359) and possession of methamphetamine while
armed with a firearm (count 4/Health & Saf. Code, § 11370.1, subd. (a)).
On appeal,
Rudy contends the court abused its discretion when it found him unsuitable for
deferred entry of judgment. We affirm.
FACTS
On March 3,
2011, approximately three months before Rudy’s 18th birthday, Fresno police
officers, acting on a tip, went to Rudy’s house. Rudy answered the door and while speaking
with the officers, admitted selling marijuana and having some at the residence. After Rudy’s mother allowed the officers in
the house, Rudy told them that he had the marijuana and a firearm in a detached
garage where he slept. The officers went
to the garage and found a small quantity of crystal methamphetamine and two
large garbage bags full of marijuana.
They also found a loaded Glock pistol, which had been reported stolen,
lying on a couch. Rudy told the officers
that he bought the gun for $400 and that he purchased it because of past
problems in his neighborhood with Sureño gang members.
Mario S. was at Rudy’s residence
when the officers arrived. Mario told
the officers that he often visited Rudy to smoke marijuana and that he had
purchased marijuana from him on several occasions. Rudy and Mario both told the officers that
three weeks earlier they had fired the Glock pistol several times in the
direction of Chandler Airport. The
officers arrested both juveniles.
On March 11, 2011, the district
attorney filed a petition charging Rudy with discharging a firearm with gross
negligence (count 1/Pen. Code, § 246.3, subd. (a)), possession for sale of
marijuana (count 2), possession of a firearm by a minor (count 3/Pen. Code, §
12101, subd. (a)(1)), possession of methamphetamine while armed with a firearm
(count 4), and possession of methamphetamine (count 5/Health & Saf. Code,
§ 11377, subd. (a)). The district
attorney also filed a Determination of Eligibility, finding Rudy eligible for
deferred entry of judgment (DEJ).
On April 2, 2012, Rudy admitted all
the allegations of the petition for purposes of being considered for DEJ.
On May 23, 2012, the probation
department filed a DEJ report. The
report noted that during an interview with Rudy and his mother on April 16,
2012, Rudy stated that he sold marijuana because he did not have a job. Rudy denied having problems with Sureño gang
members or telling the police that.
According to Rudy, he had the gun because he just wanted to have one and
he thought “it looked cool.†Rudy also
claimed the police lied in the police report and in court about what happened
the day he was arrested.
name="_ftnref2" title="">[1] Nevertheless, he admitted that the charges
were true.
Rudy’s mother told the probation
department that he obeyed her restrictions and only left the house after
obtaining permission. Rudy also
performed a variety of household chores and he was respectful and well-behaved
at home. Additionally, Rudy’s father
spoke to him regularly on the phone and Rudy had gone to visit his father in
Washington. Rudy was currently attending
an independent study program at Washington Union High School and was scheduled
to graduate on May 25, 2012.
Rudy admitted previously drinking
alcoholic beverages three times, using methamphetamine twice, and smoking
marijuana three times every two weeks starting at age 15. He denied any gang involvement.
In January 2009, Rudy and another
juvenile stole a teacher’s projector from Edison High School. This incident resulted in the court placing
Rudy on DEJ from April 17, 2009, through April 17, 2012, and ordering him
to serve 30 days on the electronic monitor.
On April 19, 2010, DEJ was terminated and the petition was dismissed in
that matter.
The report concluded that Rudy was
not suitable for deferred entry of judgment because of the seriousness and
inappropriateness of the underlying charges in that they involved the
possession and discharge of a handgun by a person who was involved in the
illegal sales of drugs. The report also
cited Rudy’s continued use of marijuana through March 2012, even though he had
charges pending; Rudy’s claim that police were lying about his statements to
them when he was arrested; Rudy’s failure to reform even though he had been
through the program before; and the serious nature and potential for violence
of his activities which had escalated dramatically.
On May 23, 2012, when the court
noted that the matter was on calendar “for DEJ suitability,†Rudy’s defense
counsel stated that they were submitting on the probation department’s
recommendation. After the prosecutor
also submitted the matter the court stated,
“All right, the Court will adopt
the recommendations and findings of the probation officer and find that this
minor - - or former minor is not a suitable candidate for [DEJ] in light of the
circumstances of the offense, that is the selling of drugs or narcotics while
also in possession and use of a handgun.
“The minor has previously completed
the [DEJ] program and once again finds himself before the Court on serious
alleged offenses. In light of that, the
Court agrees that he’s not suitable for [DEJ] again.…â€
The court then allowed Rudy to
withdraw his plea.
On June 1, 2012, Rudy entered into
a negotiated plea pursuant to which he pled no contest to counts 2 and 4 in
exchange for the remaining counts being dismissed.
On June 25, 2012, the court placed
Rudy on probation until June 25, 2013, and it ordered him to serve 90 days on
the electronic monitor and perform 200 hours of community service.
DISCUSSION
Rudy contends that the following
circumstances supported a grant of DEJ: 1) he had not reoffended during the
year between his arraignment and his suitability hearing; 2) he was in the
process of getting a job; 3) since being released from custody, he attended
school regularly, was extremely obedient to the adults in charge of him, had
not engaged in any misconduct, and had complied with all the terms and
conditions imposed by the court through the date of his suitability hearing; 4)
there were no facts indicating he would not benefit from education,
rehabilitation, and treatment under a grant of DEJ; and 5) there is nothing
about the facts of the instant case indicating a heightened level of criminal
sophistication. He further contends that
the court was required to make factual findings that demonstrate he was not
benefiting from his family and school settings and that in the absence of such
finding, the court abused its discretion when it denied him DEJ. Rudy is wrong.
The DEJ
procedure allows a minor to admit the allegations of a petition and to complete
a period of probation, including participation in programs designated by the
juvenile court. (Welf. & Inst. Code,
§ 794.) If the minor successfully
completes the probation, the charges against the minor are dropped and the
record is sealed. (Welf. & Inst.
Code, § 793, subd. (c).) The first step
in the procedure requires the prosecutor to evaluate the minor and determine if
the minor is eligible for deferred entry of judgment pursuant to the conditions
established in Welfare and Institutions Code section 790, subdivision (a). After performing the evaluation, the
prosecutor is required to file a declaration if the minor is found
eligible. (Welf. & Inst. Code,
§ 790, subd. (b).) The juvenile
court is then required to determine if the minor is suitable for deferred entry
of judgment. (Ibid.)
“The court thus ‘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(d)] and
[Welfare and Institutions Code] 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.]’†[Citations.]
The court may grant DEJ to the minor summarily under appropriate
circumstances [citation], and if not must conduct a hearing at which “the court
shall consider the declaration of the prosecuting attorney, any report
and recommendations from the probation department, and any other relevant
material provided by the child or other interested parties.†[Citations.]’
[Citation.]†(
670, 677.)
“Although, … the decision to grant
DEJ is a matter of discretion for the juvenile court, appellate courts have
concluded that the procedures for considering DEJ reflect a ‘strong preference
for rehabilitation of first-time nonviolent juvenile offenders’ and limit the
court’s power to deny DEJ such that denial of DEJ to an eligible minor who
wants to participate is proper only when the trial court finds ‘“the minor
would not benefit from education, treatment and rehabilitation.â€â€™ [Citations.]â€
(In re Joshua S.,
In determining a minor’s
suitability for DEJ the court must consider the minor’s age, maturity,
educational background, family relationships, demonstrable motivation,
treatment history, if any, and other mitigating and aggravating factors. (Welf. & Inst. Code, § 791, subd.
(b).) “The court is not required to
ultimately grant DEJ, but is required to at least follow specified procedures
and exercise discretion to reach a final determination once the mandatory
threshold eligibility determination is made.
[Citation.]†(In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.)
Here, Rudy was three months shy of
his 18th birthday when he committed the underlying offenses in this
matter. He had previously been placed
on deferred entry of judgment for a grand theft offense on April 17, 2009,
which was to last through April 17, 2012, but was terminated on April 19, 2010. Despite this previous attempt to rehabilitate
him, he committed two drugs offenses while armed with a handgun and he
discharged the handgun on at least one occasion in a wantonly reckless manner
toward an airport. Moreover, although he
admitted to the probation department that he committed the offenses he was charged
with, he claimed that the police officers lied about what happened when they
arrested him and he continued to use marijuana through March 2012, while
awaiting resolution of the underlying charges.
Thus, Rudy’s age, his failure to reform after a previous grant of
deferred entry of judgment, the seriousness of the current offenses, the
escalating nature of his criminal behavior, his contempt for law enforcement,
and his continued use of marijuana amply support the court’s determination that
he was not suitable for deferred entry of judgment.
Although certain circumstances
supported a grant of DEJ, none were so compelling that they undermined the
court’s finding of unsuitability.
Moreover, we review a court’s denial of DEJ for abuse of discretion. (In re Sergio R. (2003) 106
Cal.App.4th 597, 607.) Abuse of
discretion implies the absence of arbitrary or capricious disposition, or
whimsical thinking. Judicial discretion
is abused when a court exceeds the bounds of reason given the circumstances
under consideration. (People v.
Giminez (1975) 14 Cal.3d 68, 72.)
Therefore, since the juvenile court was aware of its discretion and had
sound reasons for its decision, we conclude that the court did not abuse its
discretion when it found Rudy unsuitable for DEJ.
DISPOSITION
The
judgment is affirmed.
an officer during a hearing on a defense motion to suppress that the court
denied.
