Filed 9/23/13 In re Erick G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ERICK G., a Person Coming Under B245683
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. NJ27033)
THE PEOPLE,
Plaintiff and Respondent,
v.
ERICK G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
John H. Ing, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels and
Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Erick G. appeals from an order denying deferred entry of judgment after the
juvenile court found he had committed the offense of possession of a firearm by a minor
(Pen. Code, § 29610), a felony. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Long Beach police officers were seeking witnesses to a recent shooting in an alley
outside Erick‟s apartment. Through the open window the officers saw marijuana plants
growing in a fish tank in Erick‟s bedroom. A loaded handgun was then found during a
search of the bedroom. Erick admitted the marijuana plants and the handgun belonged to
him.
A three-count petition was filed pursuant to Welfare and Institutions Code section
6021 charging then 17-year-old Erick with possession of a firearm by a minor, cultivating
marijuana and misdemeanor possession of live ammunition by a minor. Erick denied the
allegations.
Following the denial of his motion to suppress evidence (§ 700.1), Erick waived
his right to a jurisdiction hearing and admitted the allegation of possession of a firearm
by a minor with the understanding the juvenile court would determine the appropriate
disposition after reviewing the probation report and dismiss the remaining counts in
furtherance of justice. The court found the allegation to be true and sustained the
petition. Defense counsel then presented Erick‟s most recent student progress report
from the Los Padrinos Juvenile Detention Facility and requested the court either grant
Erick deferred entry of judgment (DEJ) or order him home on probation as recommended
by the probation department. The prosecutor urged the court to order Erick into the
short-term camp community placement program.
After reviewing the probation report and hearing argument by counsel, the
juvenile court found Erick was not suitable for DEJ under the circumstances of the
offenses and Erick‟s background, specifically the loaded firearm and his admitted gang
1
Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
membership, chronic failure to attend school2 and marijuana use. The court explained,
“These are all circumstances that indicate a total lack of structure that the minor very
sorely needs. He will get that in a short-term camp. I understand and appreciate that it is
minor‟s first contact with law enforcement, but he‟s been broken [sic] in this in a big
way.” Erick was declared a ward of the juvenile court; the offense declared a felony; and
Erick was ordered into the short-term camp community placement program. The court
dismissed the remaining counts and calculated Erick‟s maximum term of confinement as
three years.
DISCUSSION
“[I]n 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 successful completion of a term of
probation, on the motion of the prosecution and with 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 v. Superior
Court (2003) 108 Cal.App.4th 556, 558.)
These provisions “„empower the court, under specified conditions, and upon the
minor‟s admission of the allegations of the petition, to place the minor on probation
without adjudging him or her to be a ward of the court.‟” [Citation.] Under appropriate
circumstances, the court may summarily grant DEJ to the minor. [Citations.] If the court
does not summarily grant DEJ, it must conduct a hearing at which it must „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.‟ [Citation.] It is the mandatory duty of the juvenile court to either
2
The probation report indicated, and defense counsel acknowledged, Erick left the
United States for Mexico three years earlier after a poor academic performance in the
ninth grade. He did not attend school while in Mexico or after returning to the United
States.
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grant DEJ summarily or examine the record, conduct a hearing, and determine whether
the minor is suitable for DEJ, based upon whether the minor will derive benefit from
„education, treatment, and rehabilitation.‟ [Citations.] While the court is not required to
grant DEJ, it is required to „follow specified procedures and exercise discretion to reach a
final determination once the mandatory threshold eligibility determination is made.‟”
(In re D.L. (2012) 206 Cal.App.4th 1240, 1243-1244, fn. omitted; see Cal. Rules of
Court, rule 5.800.)
Erick does not contend the juvenile court abused its discretion in denying his
request for DEJ. Instead, Erick insists the court committed reversible error by failing to
specifically direct the probation department to investigate his suitability for DEJ before
rejecting that predisposition alternative.
To be granted DEJ, a minor must waive time for pronouncement of judgment and
admit all allegations in the petition. (§ 791, subd. (a)(3).)3 Erick, in effect, rejected DEJ
when he admitted only the allegation of possession of a firearm by a minor, and not any
other alleged criminal conduct, in return for the juvenile court‟s determination of an
appropriate disposition and dismissal of the remaining counts. (See In re Kenneth J.
(2008) 158 Cal.App.4th 973, 979-980 [denial of petition‟s allegations prior to suitability
hearing removed minor from consideration for DEJ]; In re Usef S. (2008)
160 Cal.App.4th 276, 285-286 [same]; In re Spencer S. (2009) 176 Cal.App.4th 1315,
1322-1323 [as to both summary and nonsummary grants of DEJ, the minor must admit
3
Section 791, subdivision (a)(3), states, “The prosecuting attorney‟s written
notification to the minor shall also include all of the following: [¶] . . . [¶] (3) A clear
statement that in lieu of jurisdictional and disposition hearings, the court may grant a
deferred entry of judgment with respect to any offense charged in the petition, provided
that the minor admits each allegation contained in the petition and waives time for
pronouncement of judgment, and that upon the successful completion of the terms of
probation, as defined in Section 794, the positive recommendation of the probation
department, and the motion of the prosecuting attorney, but no sooner than 12 months
and no later than 36 months from the date of the minor‟s referral to the program, the court
shall dismiss the charge or charges against the minor.”
Erick does not contend the prosecutor failed to provide him with written
notification of his eligibility for DEJ prior to the hearing on suitability.
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petition‟s allegations prior to suitability hearing]; accord, In re D.L., supra,
206 Cal.App.4th at pp. 1244-1245; cf. In re Joshua (2011) 192 Cal.App.4th 670, 681-682
[minor who did not request a jurisdiction hearing and admitted all remaining allegations
of an amended petition in a negotiated plea could still be considered for DEJ].)
Even if Erick had not removed himself from consideration for DEJ, under the
circumstances of this case the juvenile court was not obligated to once again refer the
case to the probation department for investigation of his suitability for DEJ. What is
required for an eligible minor is the court either summarily grant DEJ or conduct a
hearing to consider the minor‟s suitability for that program with a report from the
probation department to assist it.4
Nothing in the record suggests the juvenile court did not give full consideration to
Erick‟s request for DEJ. After hearing counsels‟ arguments, reviewing the probation
report and the student progress report submitted by the defense, the court concluded Erick
was not suitable for DEJ because he needed a more restrictive and structured setting.
Although now Erick maintains the probation report was deficient in various respects, he
did not object to the report or state it was incomplete or incorrect at the time of the
hearing. Erick‟s claim his suitability for DEJ should have been specifically evaluated by
the probation department, made for the first time on appeal, has been forfeited. (People
v. Welch (1993) 5 Cal.4th 228, 234-235.)
4
Section 791, subdivision (b), states, “If the minor consents and waives his or her
right to a speedy jurisdictional hearing, the court may refer the case to the probation
department or the court may summarily grant deferred entry of judgment if the minor
admits the charges in the petition and waives time for pronouncement of judgment.”
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DISPOSITION
The order is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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