In re C.A. CA6

Filed 8/1/14 In re C.A. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

In re C.A., a Person Coming Under the H039846
Juvenile Court Law. (Santa Clara County
Super. Ct. No. JV39486)

THE PEOPLE,

Plaintiff and Respondent,

v.

C.A.,

Defendant and Appellant.

I. INTRODUCTION
Carlos A., then 13 years old, admitted breaking the arm of a six-year old boy by
pushing him to the ground, a battery involving serious bodily injury (Pen. Code, §§ 242-
243, subd. (d)). The juvenile court determined that Carlos was not suitable for the
deferred entry of judgment (DEJ) program, declared him to come within Welfare and
Institutions Code section 602,1 and imposed a number of probation conditions, including
that he have no contact with the named victim. On appeal, Carlos contends that
excluding him from DEJ was an abuse of discretion, the no-contact probation condition
must be modified to add a scienter element, and the court erred by failing to state whether

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Unspecified section references are to the Welfare and Institutions Code.
his offense was a felony or misdemeanor. The Attorney General disputes the first two
contentions, arguing that the probation condition was effectively clarified by an earlier
restraining order, while conceding the matter should be remanded to characterize the
offense. We will reverse the dispositional order so that the court may properly
characterize the offense and clarify the no contact condition.
II. JUVENILE COURT PROCEEDINGS
A. PETITION AND RESTRAINING ORDER
A petition under section 602 charged Carlos, born in 1999, with felony battery
causing serious bodily injury to six-year-old Adrian R. The police report described
Carlos as bullying younger children in his Morgan Hill neighborhood. Adrian broke his
right arm when Carlos pushed him to the ground outside their neighboring apartments.
Adrian said he was playing with a friend, not with Carlos because Carlos is older and
hurts him. Carlos was seven inches taller than Adrian and twice his weight.
Carlos first appeared in court with legal representation in September 2012. There
were several continuances to allow defense counsel to investigate. At a hearing on
January 15, 2013, defense counsel announced that her investigation was complete and
that Carlos had been behaving well. She proposed continuing the case until he turned 14,
at which time he could be considered for deferred entry of judgment (DEJ). The
prosecutor was agreeable pending further investigation. The court expressed interest in
obtaining school transcripts and ordered probation to submit a DEJ suitability report,
though Carlos was still 13.
A DEJ suitability report was filed two weeks later. Carlos described the incident
as involving “ ‘play wrestling’ ” when he pushed Adrian, Adrian fell to the ground, cried,
and went home. Carlos said he was not aware Adrian was injured, he had not intended to
injure him, and he was remorseful. Adrian’s father said Carlos was a bully who had
acted intentionally. According to Carlos’s mother, he was performing well in seventh
grade except for one difficult class. The probation officer considered Carlos suitable for

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the DEJ program, stating he had “demonstrated motivation and a positive educational
background by his level of participation at school and counseling services,” as well as his
mother’s support and his remorse.
The court received the report at a hearing in February 2013. Using Judicial
Council Form JV-250, the court issued a one-year restraining order to keep Carlos away
from Adrian R. The court described the restraining order as follows: “[Y]ou may not be
around Adrian R[]. You cannot molest, attack, strike, threaten, sexually assault, batter,
harass, destroy the personal property of, contact or disturb his peace. You must not
contact him directly or indirectly. So no e-mail. No mail. No Facebook. None of that.”
When Carlos said he understood, the court continued, “You’re to stay 300 yards away
from the protected person, his home, his school and his daycare if there is any.” Carlos
acknowledged that they did not attend the same school and that he cannot go to Adrian’s
school.
B. JURISDICTION HEARING
A Probation Department memo filed in April 2013 attached a list of disciplinary
incidents from Carlos’s elementary and middle schools, which included him causing a
physical injury in May 2012 at the elementary school, plus two instances of bullying in
September 2012 and defiant disruption in March 2013, all at the middle school.
According to Carlos, the other “ ‘bullying’ ” incidents were not his fault. He was simply
defending himself after being teased about his appearance.
The jurisdictional hearing was held in April 2013. Carlos and his attorney
initialed and signed a four-page “waiver form with advisements, stipulations,
declarations, findings, and orders.” The court reviewed the waivers with Carlos, who
said he understood the requirements of the DEJ program as explained by his attorney and
that the court would decide whether he could participate in the program. Carlos admitted
a battery causing serious injury by breaking Adrian’s arm. The court found that Carlos
knew the wrongfulness of his offense at the time, even though he was under 14. Boxes

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on the form addressing the court’s discretion to treat the offense as either a felony or a
misdemeanor were unchecked.
Carlos’s attorney argued in favor of placing him in the DEJ program. The
probation officer also favored DEJ, while the prosecutor opposed it. The court recessed
to review the records and then ruled:
“I have reviewed the police report, especially the statement of the
victim Adrian []. [¶] I also reviewed the disciplinary record and attendance
records that were attached to the court memorandum of April 23rd, 2013
and I also reread the DEJ report submitted by the Probation Officer
previously.
“I think this is a very serious offense and I do have to look at the
seriousness of the offense. It is not just the age difference, but the fact that
the victim said that he doesn’t like to play with Carlos because Carlos hurt
him and there was no warning. [¶] There was no “playing” with Carlos
according to the victim’s statement, which is different from what Carlos
indicates happened and how Adrian’s arm was broken.
“It was also very significant to the Court that in looking at the
disciplinary incident that was provided, the incident that brings Carlos here
today occurred on July l0th i[n] 2012. It appears from the record that on
May 25th, 2012 on the playground at school Carlos also caused physical
injury. [¶] Then on September 5th, 2012 there was [a] bullying incident
and another bullying incident on September 28th, 2012. In between those
two dates of bull[ying], Carlos has made his first appearance in court
September 17th while this incident was pending. [¶] He continued to bully
the other minors at school and I can’t overlook that he apparently caused
some physical injury previously at school. Then recently there has been
some truancy and cuttings, also some defiance and disruption.
“In the suitability report, the Probation Officer either didn’t have
these records or didn’t have this information or didn’t know about it. [¶] I
find this report incomplete and to have not given me the true situation.
“I don’t really see an improvement in his record in terms of absences
and tardies. I believe there are two F’s now instead of just one as
previously reported.
“Given all of this information at this time, I believe the minor’s
needs exceed the DEJ program and given the seriousness of the offense,
I’m not going to allow him to participate in the DEJ program.”
The court sustained the petition, saying that Carlos should get all the services he needs.

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 On the “Jurisdiction Hearing-Juvenile Delinquency” Form JV-644 are boxes for
recording admissions by count number. A column of five boxes is provided under the
heading “misdemeanor,” with five more under the heading “felony” and five more “to be
specified at disposition.” (Capitalization omitted.) Next to “PC243/243(d)” the box for
“felony” is checked. On the next page, a form statement that the child is described in
section 602 was checked. The court signed the form on that page, but made no statement
on the record or on the form characterizing the offense as a felony or a misdemeanor.
C. DISPOSITION HEARING
A probation report filed at the May 2013 disposition hearing recommended a
number of conditions of probation, including “that said minor have no contact of any type
with Adrian R.” The probation officer’s opinion was that “Carlos is an immature young
boy [who] may not fully understand the consequences of his actions. Although Carlos’
behavior may not have been intentional, the injuries sustained to the victim are serious.
Given that Carlos has been disciplined twice this year for similar behavior demonstrates
he may require additional supervision other than what the DEJ program could have
provided him.”
Carlos’s counsel submitted the matter at the hearing. A representative of a social
services agency explained that they were in the process of connecting Carlos to the
YMCA for social activity, they monitor him at school, and follow up with him and his
mother. They did not arrange counseling for Carlos, as that would be done through his
school.
A probation officer recommended adding one condition to provide that Carlos be
returned to his parents’ custody. After modifying a community service condition, the
court found “that the recommendations of Probation as modified on the record are in the
minor’s best interest. They shall become orders of disposition effective immediately.” A
restitution hearing was scheduled for a later date.

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 The court did not announce a determination that the offense was a felony or a
misdemeanor. The court on the same day signed Judicial Council Form JV-665 entitled
“Disposition-Juvenile Delinquency.” In a section for findings and orders is a checked
box followed by the preprinted text: “The court previously sustained the following
counts. Any charges which may be considered a misdemeanor or a felony for which the
court has not previously specified the level of offense are now determined to be as
follows.” Below this text are two columns of six boxes, the first labeled “Misdemeanor”
and the second “Felony.” Other headings in the same row are “Enhancement [],”
“Count,” and “Statutory violation” separated by spaces. Typed below “Count” is “1,”
below “Statutory violation” is “PC 242/243(d),” and in the same row the box for felony is
checked, not the box for misdemeanor. Immediately above the court’s signature on the
following page is a checked box next to text providing that “[a]ll prior orders not in
conflict … remain in full force and effect.” Attached to the disposition form are the
recommended probation conditions.
The court also signed an order of probation to which were attached the probation
conditions, including “that said minor have no contact of any type with Adrian R.”
III. ANALYSIS
A. DENIAL OF DEFERRED ENTRY OF JUDGMENT
1. DEJ Statutes
Both the Penal Code (§§ 1000-1000.6) and the Welfare and Institutions Code (§§
790-795) provide for the deferred entry of judgment in certain situations. In the juvenile
context, DEJ is one of two rehabilitative options short of declaring a minor who has
committed an offense to be a ward of the court. A more structured alternative than a
program of supervision is to evaluate a minor’s performance on probation while deferring
entry of judgment without finding the minor to be a ward under section 602.
Only certain minors are eligible for a DEJ program. The statutory criteria are: the
minor has committed a felony offense that is not among the 30 offenses listed in section

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707, subdivision (b) or the 17 probation-disqualifying offenses listed in Penal Code
section 1203.06, subdivision (a)(1); the minor has not had probation revoked without
completion nor been declared a ward for committing a felony offense nor committed to
the Youth Authority; and the minor is at least 14 years old at the time of the hearing. (§
790, subd. (a)(5).) If the minor meets these criteria, the prosecutor shall so declare to the
court. (§ 790, subd. (b).) The prosecutor’s declaration of eligibility is the first step of the
process. (In re C.W. (2012) 208 Cal.App.4th 654, 660 (C.W.).)
The second step of the process is the court’s determination of suitability. (C.W.,
supra, at p. 660.) “[I]f the minor admits the charges in the petition and waives time” to
pronounce judgment, “the court may summarily grant” DEJ or “may refer the case to the
probation department” (§ 791, subd. (b)) and “may set the hearing for” DEJ (§ 790, subd.
(b)). “When directed by the court, the probation department shall” investigate “whether
the minor is a person who would be benefited by education, treatment, or rehabilitation.”
(§ 791, subd. (b).) “[T]he court may grant” DEJ “[u]pon a finding that the minor is …
suitable” for DEJ and “would benefit from education, treatment, and rehabilitation efforts
… .” (§ 790, subd. (b).) Upon granting DEJ, the juvenile court “may … impose any
other term of probation authorized by this code that the judge believes would assist in the
education, treatment, and rehabilitation of the minor and the prevention of criminal
activity.” (§ 794.)
After one to three years of successful performance on probation, the charges may
be dismissed. (§ 791, subd. (a)(3); cf. § 793, subd. (c).) “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.” (Martha C. v. Superior Court (2003)
108 Cal.App.4th 556, 558 (Martha C.).)
2. Discretion to Deny Deferred Entry of Judgment
The above statutes make a clear distinction between the prosecutor’s mandatory
duty to inform the court that a minor is eligible for DEJ under the statutory criteria and

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the juvenile court’s discretionary authority to find the minor suitable for DEJ. (In re
Sergio R. (2003) 106 Cal.App.4th 597, 603-607 (Sergio R.).) Meeting the statutory
criteria does not compel a suitability finding. (Id. at p. 605.) A juvenile court’s
suitability finding is reviewed on appeal for abuse of discretion. (In re Damian M.
(2010) 185 Cal.App.4th 1, 5 (Damian M.).)
Martha C., supra, 108 Cal.App.4th 556 quoted uncodified findings of Proposition
21 and concluded that they “express not only a strong preference for rehabilitation of
first-time nonviolent juvenile offenders but suggest that under appropriate circumstances
DEJ is required.” (Id. at p. 561.) The Martha C. court found nothing in section 791
“suggesting that any consideration other than the minor’s nonamenability to rehabilitation
is a proper basis for denying deferred entry of judgment” (ibid.) and concluded that
“denial is proper only when the trial court finds the minor would not benefit from
education, treatment and rehabilitation.” (Ibid.) In that case, the trial court “denied DEJ
because it wished to send a message to other potential juvenile drug smugglers that there
would be permanent consequences flowing from such criminal activity. This was not an
appropriate basis for denying DEJ since it had nothing to do with Martha’s potential for
rehabilitation.” (Id. at p. 562.)
Carlos relies on Martha C. and its progeny to argue that the juvenile court “relied
upon improper factors” in denying DEJ including “the seriousness of the offense, the age
difference between Carlos and Adrian,” and other incidents of Carlos bullying Adrian
and others.
If a minor’s crime is serious enough to be listed in either section 707, subdivision
(b), or Penal Code section 1203.06, subdivision (a)(1), the minor is simply ineligible for
DEJ. However, the fact that the committed offense does not preclude eligibility does not
require the juvenile court to ignore either the seriousness of the offense or the criminal
sophistication of the minor in evaluating DEJ suitability. Damian M., supra, 185
Cal.App.4th 1 upheld a DEJ denial based partly on trial court findings that “Damian had

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engaged in sophisticated organized criminal activity” and “would more likely benefit
from formal probation … .” (Id. at p. 5.) Sergio R. found no abuse of discretion in
denying DEJ to a minor who was “an entrenched Norteño gang member with a history of
drug abuse and admitted addiction to methamphetamine.” (Sergio R., supra, 106
Cal.App.4th. at p. 608.) His charged crimes involved possessing and using
methamphetamine and committing a residential burglary with other gang members that
involved taking property including a .22 caliber rifle. (Ibid.) Citing Sergio R., Martha
C., supra, 108 Cal.App.4th 556 acknowledged that “a court might find that the
circumstances of a crime indicate a minor is not amenable to rehabilitation … .” (Id. at p.
562.)
We reject any suggestion that the seriousness of a minor’s criminal behavior is
irrelevant to the minor’s ability to benefit from less formal treatment and rehabilitation
efforts. In reply, Carlos concedes that the nature of the offense is relevant, but contends
it is not dispositive. It is similarly relevant that the behavior appears to be chronic and
ingrained. The juvenile court is not required to grant DEJ to every eligible minor who
would benefit from any education, treatment, and rehabilitation efforts. The real question
in many cases is whether the minor would derive greater benefit from more formal and
longer-term probation supervision than is available on a DEJ program.
Here, what the juvenile court said was serious about the offense was not the
severity of the broken arm or simply the age difference between Carlos and Adrian, but
that the victim said Carlos had hurt him before and they were not playing, contrary to
what Carlos said. The juvenile court also found significant that it was not an isolated
incident. There was evidence that Carlos continued to act like a bully after this incident
and even after being brought to court for it.
We believe that the trial court’s authority was not as limited as Carlos contends
and that these considerations were relevant to his suitability for DEJ. We recognize that
the probation officer in initially recommending DEJ noted the existence of some factors

9
favorable to Carlos (remorse, school grades, participation in counseling), but we find no
abuse of discretion in the juvenile court deciding otherwise. The juvenile court pointed
out that the probation officer was apparently not then aware of the other factors the court
found more significant. Carlos does not establish that the juvenile court struck an
irrational or arbitrary balance by either ignoring factors cited in the suitability report or
relying on improper factors.
B. CHARACTERIZATION OF OFFENSE AS FELONY OR MISDEMEANOR
Carlos faults the juvenile court for failing to specify whether his offense was a
felony or a misdemeanor. The Attorney General concedes the merit of this contention
without suggesting that the juvenile court’s completion of Judicial Council Form JV-655
after the disposition hearing satisfied the court’s obligations.
Section 702 states in part, “If the minor is found to have committed an offense
which would in the case of an adult be punishable alternatively as a felony or a
misdemeanor, the court shall declare the offense to be a misdemeanor or felony.”
California Rules of Court, rule 5.778 provides that the juvenile court, after an
admission or plea of no contest, must make findings on several topics, including “(9) In a
section 602 matter, the degree of the offense and whether it would be a misdemeanor or
felony had the offense been committed by an adult. If any offense may be found to be
either a felony or misdemeanor, the court must consider which description applies and
expressly declare on the record that it has made such consideration and must state its
determination as to whether the offense is a misdemeanor or a felony. These
determinations may be deferred until the disposition hearing.” (Italics added.) The same
express declaration is required by rule 5.780(5) after a contested jurisdictional hearing
and at the disposition hearing “[u]nless determined previously … .” (Cal. Rules of
Court, rule 5.795(a); cf. rule 5.790(a)(1).)
In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), the California Supreme
Court observed that the express declaration requirement of section 702 serves at least two

10
purposes. It provides “a record from which the maximum term of physical confinement
for an offense can be determined, particularly in the event of future adjudications.”
(Manzy W., supra, at p. 1205.) It “also serves the purpose of ensuring that the juvenile
court is aware of, and actually exercises, its [statutory] discretion … .” (Id. at p. 1207.)
The court summarized its earlier decision in In re Kenneth H. (1983) 33 Cal.3d
616 (Kenneth H.) with approval as reiterating “that neither the pleading, the minute order,
nor the setting of a felony-level period of physical confinement may substitute for a
declaration by the juvenile court as to whether an offense is a misdemeanor or felony.”
(Manzy W., supra,. at p. 1208.) It also quoted, “ ‘the crucial fact is that the court did not
state at any of the hearings that it found the [offense] to be a felony.’ ” (Ibid., quoting
Kenneth H., supra, at p. 620.)
Nowhere in this record do we find an oral statement by the juvenile court
acknowledging its statutory obligation to classify the wobbler charge of battery with
serious bodily injury as a felony or misdemeanor. The crime is designated a felony on
Form JV-655, but the judge’s signature on a form order does not assure us that the
juvenile court itself “was aware of, and exercised its discretion to determine the felony or
misdemeanor nature of a wobbler.” (Manzy W., supra, 14 Cal.4th at p. 1209.) We accept
the Attorney General’s concession that the matter must be remanded for the court to
exercise that discretion on the record.
C. NO CONTACT CONDITION
Carlos contends that the probation condition stating he is to “have no contact of
any type” with Adrian is unconstitutionally vague and overbroad “because it lacks an
explicit requirement that there is only a violation if contact with the victim is knowingly
made.” Carlos relies on this court’s decision in People v. Pirali (2013) 217 Cal.App.4th
1341. However the condition at issue there prohibited access to the Internet or any other
on-line service by a person who had possessed child pornography. (Id. at p. 1344.) That
condition was not designed to restrict association or contact with another person.

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 The Attorney General argues that the restraining order has sufficiently clarified the
meaning of contact, while Carlos notes that the restraining order also lacks a knowledge
element. We recognize that a trial court’s clarifying remarks may eliminate potential
ambiguity and vagueness in a probation condition. (See In re Sheena K. (2007) 40
Cal.4th 875, 891-892.) But we disagree with the Attorney General’s contention that there
were such remarks in this case. We do not regard the restraining order issued on
February 11, 2013, as a clarification of the probation condition imposed almost three
months later on May 7, 2013. In imposing the probation condition, the court made no
reference to the prior order. The court adopted many of the probation report’s
recommendations, but that report also made no reference to the restraining order. We
therefore review the language of the condition standing alone.
In People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), this court
addressed probation conditions restricting association in general and a “stay-away”
condition in particular. We understand a no-contact probation condition as typically
prohibiting two kinds of contact, physical proximity and communication. A stay-away
condition more narrowly targets physical proximity. Carlos’s contentions focus on the
proximity restraints of the condition prohibiting contact, thus Rodriguez is apposite.
Probation conditions restricting association “based on some status that may not be
readily apparent (e.g., probationer, parolee, gang member, drug user, minor) …” must
include a mental element. (Rodriguez, supra, at p. 587.) Naming the individual to avoid
is one way of conveying the requisite knowledge to the probationer. (Id. at p. 595.)2

2
The challenged condition in Rodriguez, supra, 222 Cal.App.4th 578, had a “fatal
ambiguity” because it instructed the defendant to stay at least 100 yards away from “ ‘the
victim’ ” when there were two victims. (Id. at pp. 594-595.) We acknowledged that an
alternative clarification to naming the victims was to prohibit the defendant from
“knowingly” coming near “a known or identified victim.” (Id. at p. 595.)

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 Carlos does not seek clarification of whom he must not contact, as the condition
names the victim who is known to him. He is concerned about unintentionally and
unknowingly walking down the same street or into the same grocery store as Adrian, or
Adrian riding by in a car Carlos does not recognize.
Addressing similar concerns, Rodriguez, supra, 222 Cal.App.4th 578 observed, “It
is well established that a probation violation must be willful to justify revocation of
probation.” (Id. at p. 594). Also, “a probation condition ‘should be given “the meaning
that would appear to a reasonable, objective reader.” ’ ” (Ibid., quoting People v. Olguin
(2008) 45 Cal.4th 375, 382.)
“No reasonable law enforcement officer or judge can expect
probationers to know where their victims are at all times. The challenged
condition does not require defendant to stay away from all locations where
the victim might conceivably be. It requires defendant to remove himself
(‘Stay away at least 100 yards … .’) when he knows or learns of a victim's
presence.” (Ibid.)
Without reaching the issue of whether it is constitutionally necessary to reference
scienter in the no-contact condition, we observe that including “knowingly” would help
ensure that Carlos would not be penalized if he unknowingly comes into contact with the
victim. We acknowledge that a trial court does not err by expressly including a
knowledge element in a probation condition, since violations must be willful. Our
remand for the juvenile court to characterize the offense as a felony or misdemeanor will
also allow the court to modify the condition to specify that Carlos not knowingly have
contact with Adrian R.
IV. DISPOSITION
The dispositional order is reversed. The case is remanded for the juvenile court to
characterize the offense as a felony or misdemeanor and to allow the juvenile court to
modify the no-contact probation condition to specify that Carlos not knowingly have
contact with Adrian R.

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 ____________________________________
Grover, J.

I CONCUR:

____________________________
Bamattre-Manoukian, Acting P.J.

In re C.A., a Person Coming Under the Juvenile Court Law.
The People v C.A.
H039846
Mihara, J., Concurring and Dissenting.

I disagree with my colleagues’ disposition of this appeal with regard to the no-
contact probation condition. Carlos contends that this condition is constitutionally
vague and overbroad because it does not contain a knowledge requirement. My
colleagues assert that they are not reaching this issue, but they also decline to grant
Carlos the relief that he seeks. That is not correct.
We have only three available options for disposing of this appeal. First, if we
conclude that the Constitution does not require the inclusion of a knowledge
requirement, we reject Carlos’s contention and refuse to modify the no-contact
condition. Second, if we conclude that the Constitution does require a knowledge
requirement, we credit Carlos’s contention and require the juvenile court to modify the
condition to add a knowledge requirement. Third, if we choose not to resolve whether
a knowledge requirement is constitutionally required because we believe that one
should be included regardless, we must grant Carlos the relief he seeks and order the
juvenile court to modify the condition to add a knowledge requirement.
I believe that a knowledge requirement is constitutionally mandated. Thus, I
cannot concur in a disposition that does not require the juvenile court to modify the
condition to add a knowledge requirement. I could have concurred if my colleagues
had chosen either the second option or the third option. However, they choose a fourth
option that is not available. They decline to reach Carlos’s contention and also decline
to grant him the relief he seeks. As a Court of Appeal, we should resolve the
contentions raised by appellants unless they do not affect our disposition of the appeal.
Here, unless we require the juvenile court to add a knowledge requirement to the no-
contact condition, we must resolve Carlos’s contention. Because my colleagues fail to
do so, I dissent.
 _____________________________
Mihara, J.

In re Carlos A.
H039846

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