In re N.R.

Filed 9/21/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX

In re N.R., a Person Coming 2d. Juv. No. B278221
Under the Juvenile Court Law. (Super. Ct. No. MJ23193)
(Los Angeles County)

THE PEOPLE,

Plaintiff and Respondent,

v.

N.R.,

Defendant and Appellant.

N.R. appeals the judgment entered after the juvenile court
lifted a deferred entry of judgment (DEJ), sustained a
delinquency petition against him, declared him a ward of the
court, and terminated jurisdiction. (Welf. & Inst. Code,1 §§ 602,
793, subd. (a).) Appellant contends the court abused its
discretion in lifting DEJ based on appellant’s decision to
discontinue his high school education. He alternatively contends
the court abused its discretion in refusing to dismiss the

1 All undesignated statutory references are to the Welfare
and Institutions Code.
delinquency petition and order that his records be sealed under
either section 793 or section 786. We find no abuse of discretion
and affirm.
FACTS AND PROCEDURAL HISTORY
In April 2015, a section 602 petition was filed alleging that
appellant drove a vehicle without the owner’s consent (Veh. Code,
§ 10851, subd. (a)).2 The petition also alleged that appellant, who
was then a junior in high school, was failing all of his classes
except for Physical Education. After appellant admitted the
allegations of the petition, the court placed him on the
Community Detention Program (CDP) so he could “earn[] [the]
right to have DEJ imposed as opposed to HOP [home on
probation].”
At the June 2015 disposition hearing, appellant’s probation
officer reported that appellant had fully complied with the terms
and conditions of his CDP. The court terminated the CDP
placement, granted DEJ, and placed appellant on one to three
years of DEJ probation. Among other things, appellant’s terms of
probation required him to attend school every day, maintain at
least a grade of C in each class, and “participate in a program to
obtain [his] high school diploma or GED.” The court told
appellant: “If you do well within th[e] one-year period[,] when
you come back on June 2nd of 2016 you can have this case
dismissed and your record sealed as though it was never filed
against you.” The matter was continued to September 2015 for a
progress hearing.

2 The probation report states that appellant drove his
mother’s car without her permission after forcibly taking her car
keys from her.

2
 At the September 2015 hearing, the probation officer
reported that appellant recently began his senior year and was
performing satisfactorily on probation. Although his school
attendance was deemed satisfactory and his grades had generally
improved, he had several unverified absences and tardies. At the
hearing, the court told appellant “[y]ou will not be able to
continue with this grant of DEJ if you fail to attend school every
class, every day, on time. I need you to fundamentally
understand that I mean what I say about attending school, and if
you fail to attend school every class every day on time I will have
no choice but to terminate your grant of DEJ. So when you come
back into this court I don’t want to see that again. Do you
understand?” Appellant replied in the affirmative and the matter
was continued to December 2015 for a progress hearing.
At the December 2015 hearing, appellant’s probation officer
reported that appellant’s performance on probation continued to
be satisfactory. In the third quarter of his senior year, he earned
a C+ in English 9 and had no more unexcused absences or
tardies. His transcript indicated that his grade in Algebra 1 was
a “Work In Progress.” The court told appellant, “I would consider
[dismissing the section 602 petition] today if [the restitution] fine
were paid and it was the one year date because you have done
everything else which is very good, but by law you have to be on
[DEJ under section] 790 no less than one year. So because your
[sic] doing so well I don’t believe I need to see [you] before that
one-year date, which will be June 2, 2016. If you continue to do
well, get that fine paid, I see no reason why that date cannot be
the last date we see one another in court.”
At the June 2, 2016 hearing, the probation officer reported
that appellant’s grades and credits in the third quarter of the
semester were “unsatisfactory.” Appellant had received F’s in

3
English 9 and Algebra 1. The court stated: “It appears that
although there was some improvement in attendance there was
no improvement in his grades. However, I don’t believe that this
minor should remain on any form of probation. So the court did
give a tentative which was as follows: If the minor wanted to
stay on DEJ so he can improve his attendance . . . and also his
grades, . . . I will give him an opportunity to do that. Or I can lift
DEJ today, place him home on probation, terminating
jurisdiction today. It would be without an automatic sealing,
though, however, he would have the opportunity to return to the
court seeking a sealing of his record if he shows better grades
than what he has now.”
Appellant’s attorney pointed out the minor nature of
appellant’s offense and added, “this kid has made a lot of
improvements.” The court responded, “That’s why I don’t think
he should be on probation beyond today.” Counsel replied: “Well,
I’m concerned about the automatic sealing[.] . . . [I]t either
should be that he satisfactorily completed 790 and he doesn’t
need to be supervised anymore, because really isn’t the issue
whether or not he’s likely to reoffend, and I think he’s
demonstrated that he’s not likely to reoffend. . . . [H]e’s tested
negative for . . . drugs. . . . His grades have improved[.] . . . [H]is
[school] attendance and behavior are satisfactory, credits in the
third quarter of school semester were unsatisfactory but . . . his
current grades and academic credits are in progress. Progress to
me means making progress, being better, doing better.”
The court stated: “If [appellant] wants time to remain on
DEJ to bring back that proof I will give him the opportunity to do
that. [¶] . . . [¶] If he wants jurisdiction to terminate today I am
willing to do that as well. I am not willing to do it with an
automatic sealing for the reasons that have been stated, . . . but

4
he can always subsequently petition the court to have his record
sealed showing that he’s made better progress than what he’s
made thus far in school. Which would he prefer?”
Defense counsel represented that appellant was willing to
attend summer school. Based on this representation, the court
lifted DEJ and continued the matter until October 4, 2016 for
disposition. If appellant could demonstrate at that hearing that
each of his grades had sufficiently improved, the court would
grant automatic sealing under section 793.
At the October 2016 hearing, the probation officer reported
that although appellant’s second semester grades in his senior
year were satisfactory (he received a C+ in English 9 and a C in
Algebra 1), he had dropped out of summer school and “has
decided not to pursue his high school education.” Appellant was
working full-time for a moving company that “does not offer any
benefits, except his paycheck.” The probation officer “tried to
encourage [appellant] to complete his education[] so that[] he can
have a career in the future. He is not interested. At this time,
his priority is his job.” Because appellant was an adult and had
“exhausted all juvenile resources,” the probation officer
recommended that “probation pursuant to section 790/WIC/DEJ
and all conditions of probation be dismissed.”
At the October 2016 hearing, the court stated, “If we were
to keep [appellant] on DEJ the court did give the following
tentative, that if [he] wanted to terminate jurisdiction today as I
see no reason why this court would need to continue to supervise
him, I would lift the grant of 790, declare [him] a ward of the
court, impose [an] order of home on probation, waive the
obligation to submit to DNA and terminate jurisdiction today.”
After replying that appellant accepted the court’s tentative
ruling, defense counsel “ask[ed] the court to consider a [section]

5
786 sealing given that [appellant] has essentially done everything
this court had asked, the only issue is his schooling, which he’s
working on, and he is employed. He’s . . . contributing to society,
. . . [and] it appears as though he’s actually gotten a lot from his
interaction with probation and in terms of showing the court that
he is a responsible person. So I would ask the court to consider
that and I’ll submit.”
The court declined to dismiss appellant’s delinquency
petition and order that his records be sealed under either section
793 or section 786. The court told appellant: “[Y]ou have elected
to put your education down for the purpose of being employed.
And while you . . . definitely have the right to make that decision,
it’s not without consequence. The consequences that we did order
would be to attend school every class, every day, on time. You
are required to do that in order to be found in completion of your
grant of 790. You made the decision not to. I understand and
while the consequences that you no longer have the ability to
successfully complete the grant of DEJ, the court . . . do[es] not
believe that we need to continue to supervise you. If you want
the benefit of having your record still sealed, although I will not
do it under 786 today, you still have an opportunity to later
petition the court under Welfare and Institutions Code section
781. We just . . . need to have proof that you have obtained your
high school diploma or GED [General Education Development
exam] before I seal your record.” After appellant expressed that
he understood this, the court ordered that the previously lifted
DEJ remain lifted, sustained the section 602 petition, declared
appellant a ward pursuant to the previously imposed terms, and
terminated jurisdiction.

6
 DISCUSSION
Sections 793 and 786
Appellant contends the court abused its discretion in
refusing to dismiss the section 602 petition and seal his records
pursuant to either section 793 or section 786. He faults the court
for lifting DEJ based on his failure to maintain satisfactory
grades and continue working toward completing his high school
education. He asserts (1) “it is not rational to punish [him] for
failing to improve his employability by severely reducing his
employability”; (2) the court’s ruling “violates the spirit of the
law”; and (3) there is no evidence that he willfully failed to
comply with the term and condition requiring him to maintain
his grades. In a supplemental brief, he contends that In re A.V.
(2017) 11 Cal.App.5th 697 (A.V.)—which was issued after his
opening brief was filed—compels us to conclude the juvenile court
abused its decision in declining to dismiss the delinquency
petition pursuant to section 786 and order that the records
thereof be sealed in accordance with that statute. We conclude
the court did not abuse its discretion either in lifting DEJ
pursuant to section 793, or in declining to dismiss the petition
and seal the records thereof pursuant to either section 793 or
section 786.
Appellant’s contentions largely conflate sections 793 and
786. Although the two statutes are similar, they each embody a
different procedure. Section 793 is part of the DEJ program,
which was enacted in 2000 as part of Proposition 21. The DEJ
program postpones judgment for an eligible minor who admits
the allegations of a section 602 petition and waives time for entry
of judgment. The minor is placed on formal probation with terms
and conditions for a period of 12 to 36 months. (§§ 791, subd.
(a)(3), 794.) Upon successful completion of the terms of

7
probation, as defined in section 794, the positive recommendation
of the probation department, and the motion of the prosecuting
attorney, the court dismisses the charge or charges against the
minor. (§§ 791, subd. (a)(3), 793, subd. (c).) In that circumstance,
“the arrest upon which the judgment was deferred shall be
deemed never to have occurred and any records in the possession
of the juvenile court shall be sealed.” (§ 793, subd. (c).) If the
minor fails to comply with the terms of his probation, “the court
shall lift the [DEJ] and schedule a dispositional hearing.” (Id.,
subd. (a); § 791, subd. (a)(4).) Juvenile court determinations
whether a minor is entitled to DEJ are reviewed for an abuse of
discretion. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607.)
Section 786, which was added to the Welfare and
Institutions Code in 2014, provides an alternative procedure for
dismissing juvenile delinquency petitions and sealing the related
records. As relevant here, section 786 applies when a ward
“satisfactorily completes . . . a term of probation for any offense.”
(§ 786, subd. (a).) Upon such a finding, the court dismisses the
petition and orders that all records pertaining to the dismissed
petition be sealed. (Ibid.) After the petition has been dismissed,
“the arrest and other proceedings in the case shall be deemed not
to have occurred and the person who was the subject of the
petition may reply accordingly to an inquiry by employers,
educational institutions, or other persons or entities regarding
the arrest and proceedings in the case.” (Id., subd. (b).) For
purposes of section 786, as relevant here, “satisfactory completion
of . . . [a] term of probation . . . shall be deemed to have occurred
if the person . . . has not failed to substantially comply with the
reasonable orders of . . . probation that are within his or her
capacity to perform.” (Id., subd. (c)(1).) As with section 793, the
court’s decision whether a ward is entitled to have his records

8
sealed under section 786 is reviewed for an abuse of discretion.
(A.V., supra, 11 Cal.App.5th at p. 711.)
Appellant does not dispute that the court could require him
to attend school and maintain passing grades in his classes as a
condition of his DEJ. (See In re Angel J. (1992) 9 Cal.App.4th
1096, 1102, fn. 7; see also § 794 [providing that as a condition of
DEJ probation “[t]he judge shall also, when appropriate, require
the minor to periodically establish compliance with . . . school
attendance requirements”].) He nevertheless contends that the
court’s reliance upon his failure to comply with this condition as a
basis for lifting DEJ “is unusually counterproductive” because the
purpose of the condition is to “enhanc[e] [his] ability to maintain
prospective employment” and thus reduce the likelihood of
recidivism. (In re Angel J., at p. 1101.) According to appellant,
the court’s decision “punishes [him] for his failure to improve
employability through education by reducing his employability
through forcing him to either lie or disclose his record.” But the
court’s decision is not “punishment.” It is a fully anticipated
consequence of appellant’s willful failure to comply with the
terms of his probation. Moreover, it is not “counterproductive.”
On the contrary, it creates a continuing incentive for appellant to
complete his education.
Appellant’s claim that the court’s decision to lift DEJ
“violates the spirit of the law” is equally unavailing. Among
other things, he equates a minor who has “satisfactorily
completed” a term of probation under section 786 with a minor
who “has performed satisfactorily during the period in which
[DEJ] was granted” under section 793. Even assuming that the
two are substantially the same, the court did not abuse its
discretion in lifting DEJ as a result of appellant’s decision to
abandon his education. “There is a ‘well known correlation

9
between education and the crime rate.’ [Citations.] Performance
in school is reasonably related to future criminality, both by
deterring current delinquency, and by enhancing the ability to
maintain prospective employment or to continue in advanced
education upon graduation. A court may reasonably conclude a
juvenile, without an adequate education, is more likely to resort
to criminal activities.” (In re Angel J., supra, 9 Cal.App.4th at
pp. 1100-1101.) Because appellant made a deliberate choice to
drop out of school, and in light of the correlation between
education and future criminality, the court reasonably found he
had not substantially complied with the terms of his probation
such that he was ineligible for a dismissal and sealing under
either section 793 or section 786.3
Appellant fares no better in claiming there was no evidence
that he willfully failed to comply with the condition that he
maintain satisfactory grades. This claim involves an issue of fact
rather than a pure question of law, and was thus forfeited by
appellant’s failure to raise it below. (In re Sheena K. (2007) 40
Cal.4th 875, 889.) In any event, there is nothing to indicate
appellant was incapable of complying with the condition that he
maintain satisfactory grades. In the second semester of his
senior year, he earned a C+ in English 9 and a C in Algebra 1.
Moreover, the record reflects that he made a conscious choice to

3 For the first time on appeal, appellant invokes the
“noscitur a sociis” rule of statutory construction—i.e., the rule
that a word or phrase may be defined by the words and phrases
that accompany it (see, e.g., People v. Hernandez (2017) 10
Cal.App.5th 192, 200)—as a basis for concluding that the court
abused its discretion in lifting DEJ based on appellant’s failure to
stay in school and maintain his grades. The claim lacks merit.

10
quit school. The court characterized that action as appellant’s
“choice” and “decision” and he did not object. Because there is no
support for a finding that appellant’s failure to maintain his
grades and complete his high school education was other than
willful, the court’s reliance on that failure as a basis for lifting
DEJ was not an abuse of discretion.
A.V.
In a supplemental brief, appellant contends the recent
decision in A.V., supra, 11 Cal.App.5th 697, compels a conclusion
that the juvenile court abused its discretion in declining to order
that the records relating to his section 602 petition be sealed
pursuant to section 786. The case is inapposite.
In A.V., the minor (A.V.) was placed on DEJ probation after
he admitted the allegations of a section 602 petition. The
juvenile court subsequently lifted DEJ, imposed judgment,
declared A.V. a ward of the court, and placed him on probation
with terms and conditions. (A.V., supra, 11 Cal.App.5th at
p. 702.) Following two violations and reinstatements of
probation, A.V.’s probation officer recommended that the petition
be dismissed because A.V. had “‘completed all of his Court
ordered obligations, has continued to submit chemical tests
negative for intoxicating substances, and is now actively
employed.’” (Id. at p. 704.) A.V.’s attorney asked the court to
dismiss the petition and order the sealing of A.V.’s records.
(Ibid.) The court dismissed the petition, but declined to order
sealing. The court credited the prosecutor’s assertion that A.V.
had not “substantially complied” with the terms of his probation,
as contemplated in section 786, because a prior grant of DEJ had
been lifted and he had sustained two probation violations. The
court advised A.V. that “‘as soon as you turn 18, you can petition

11
the Court under [section] 781 to have this record sealed. It’s not
the automatic sealing under [section] 786. . . .’’’ (A.V., at p. 704.)
The Court of Appeal reversed and remanded with
directions that the juvenile court dismiss the petition and order
that all records pertaining to the petition be sealed pursuant to
subdivision (a) of section 786. (A.V., supra, 11 Cal.App.5th at
p. 712.) The appellate court concluded that that “if A.V.’s
performance was good enough to warrant dismissal of the
petition, it was good enough to warrant the sealing of the
petition.” (Id. at p. 711.) The court also recognized that “section
786 requires only ‘satisfactory completion’ with probation and, to
underscore the point, specifically defines ‘satisfactory completion’
as ‘substantial[] compl[iance]’. (§ 786, subd. (c)(1).) Substantial
compliance is not perfect compliance.” (Id. at p. 709.) The court
made clear, however, that “[b]y reaching [our] conclusion, we do
not restrict the court’s discretion to find, or not to find, that a
ward before the court has satisfactorily completed his or her
probation. We hold only that, whichever way the juvenile court
exercises its discretion, it applies to dismissing and sealing the
petition.” (Id. at p. 711.)
Here, the juvenile court did not dismiss appellant’s section
602 petition; on the contrary, it expressly declined to do so. In
A.V., “the court dismissed the petition based on its implicit
conclusion that A.V.’s performance on probation, while not
perfect, was sufficient to justify the court exercise of discretion in
A.V.’s favor.” (A.V., supra, 11 Cal.App.5th at p. 711.) No such
discretion was exercised here. Although the court terminated
jurisdiction, that action cannot reasonably be construed as an
implicit finding that appellant had “substantially complied” with
the terms of his probation for purposes of section 786. Rather,
the court made clear its conclusion that appellant had not

12
satisfactorily completed probation. In terminating jurisdiction,
the court merely recognized there was no reason to continue
supervising appellant given that he had turned 19 years old and
was adamant in his decision to quit school.
Contrary to appellant’s assertion, the “similarities”
between the facts of this case and A.V. do not aid his position.
The abuse of discretion standard is not particularly susceptible to
case-specific factual comparisons. The issue here is not whether
a grant of relief under section 786 would have been a proper
exercise of discretion, but rather whether the denial of such relief
was an abuse of discretion. Nothing in A.V. undermines our
conclusion that there was no abuse of discretion here.4

4 Although the court did not err in declining to order that
appellant’s records be sealed under section 793 or section 786, it
erred in suggesting that appellant will never be able to succeed in
having his records sealed under section 781 unless he obtains his
high school diploma or GED. Subdivision (a)(1)(A) of section 781
provides in relevant part that a person who has been the subject
of a section 602 petition may, at any time after he or she has
reached the age of 18, petition the juvenile court for sealing of the
records related to the case. The court “shall order” that the
records be sealed “[i]f, after hearing, the court finds that since the
termination of jurisdiction . . . [the petitioner] has not been
convicted of a felony or of any misdemeanor involving moral
turpitude and that rehabilitation has been attained to the
satisfaction of the court.” (§ 781, subd. (a)(1)(A).) To establish
“rehabilitation,” the petitioner “must make a showing sufficient
to convince the court that criminal behavior is in the past and
will not be repeated. This is a determination based on the
totality of the circumstances and individual factors will
inevitably vary.” (In re J.W. (2015) 236 Cal.App.4th 663, 671-
672.) Here, the court reasonably concluded that appellant’s
decision to drop out of school—in violation of his probation—

13
 DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

YEGAN, Acting P. J.

TANGEMAN, J.

reflected a current lack of rehabilitation. It would appear
manifest, however, that this factor will not necessarily preclude a
finding of rehabilitation at some point in the future.

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 Denise McLaughlin-Bennett, Judge
Superior Court County of Los Angeles
______________________________

Esther R. Sorkin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, and Analee J.
Brodie, Deputy Attorney General, for Plaintiff and Respondent.