In re J.C. CA5

Filed 10/7/20 In re J.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.C., a Person Coming Under the Juvenile
Court Law.

THE PEOPLE, F079842

Plaintiff and Respondent, (Super. Ct. No. 19JL-00026-A)

v.
OPINION
J.C.,

Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Merced County. John D.
Kirihara, Judge.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda
D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Franson, Acting P.J., Snauffer, J. and DeSantos, J.
 A Welfare and Institutions Code1 section 602 petition was sustained as to minor
J.C. after he admitted to commission of misdemeanor vandalism. At the disposition
hearing, minor was placed on probation. Minor contends the order must be conditionally
reversed because the juvenile court failed to conduct a hearing to determine his suitability
for deferred entry of judgment (DEJ) (§ 790 et seq.). He also challenges the
constitutionality of conditions of his probation requiring him to submit to a search of his
cell phone, and prohibiting him from being in a privately owned vehicle with anyone
under 18 years of age except under certain conditions.
We conclude the juvenile court did not err in failing to conduct a hearing
regarding minor’s suitability for DEJ. We also conclude his challenges to the probation
conditions are moot because minor’s probationary term has expired, and we decline to
exercise our discretion to address those challenges on the merits. Accordingly, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
On February 25, 2019, the People filed a petition pursuant to section 602, alleging
minor had committed one count of misdemeanor vandalism by inscribing material on a
park table (Pen. Code, § 594, subd. (a)), with a gang enhancement elevating the offense
to a felony (Pen. Code, § 186.22, subd. (d)), and one count of felony active participation
in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The allegations arose out of an
October 13, 2018 incident in which a Merced County Sheriff’s deputy observed minor
appearing to tag a park bench in the City of Winton, in an area known to be a gathering
place for members of the Winton Varrio Parque gang. The deputy observed “WVP”
markings on the bench and a fence. A patdown search of minor revealed a Sharpie

1 Subsequent statutory references are to the Welfare and Institutions Code, unless
otherwise noted.

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marker in his rear pocket. Minor stated he was tagging the bench because he was bored
and had a marker.2
Also on February 25, 2019, the People filed a standard form JV-750, indicating
minor was eligible for DEJ. The assigned deputy district attorney did not check a box on
the form to indicate the citation and written notification for DEJ, form JV-751, was
attached. However, a JV-751 form was also filed on February 25, 2019, addressed to
minor’s mother, and ordering minor to appear at a March 18, 2019 hearing for the court
to determine whether to grant DEJ.3 A separate notice of hearing for formal reading of
the petition, advisement of rights, and minor’s plea also was filed on February 25, 2019,
also with a hearing date of March 18, 2019. A proof of service was filed on February 25,
2019, indicating the petition, notice of hearing, and “DEJ Citation” were served on minor
and his mother by mail on February 25, 2019.4 However, the proof of service was not
signed.
Minor and his mother appeared at the March 18, 2019 hearing. The court found
notice was given as required by law. The court appointed the public defender to
represent minor and advised minor of his constitutional rights. Minor entered a denial of

2 These facts are taken from the probation report.
3 Minor’s appellate counsel incorrectly asserts the forms did not show a hearing date
for this determination.
4 In the opening brief, minor’s appellate counsel states the proof of service indicates
the notification was served on minor and his mother by personal service on March 18,
2019. In the reply brief, appellate counsel contends minor and his mother were never
served with the notification. The introductory paragraph of the unsigned proof of service
form states: “I served a copy of the Petition, Notice of Hearing DEJ Citation (name of
document) on 3-18-19 (hearing date, if applicable) on the following persons or entities”
by one of a number of means. Below the introductory paragraph, the proof of service
states minor and his mother were served by mail at their residential address on
February 25, 2019, and the public defender, district attorney, and probation officer were
served by e-mail on the same date. The sole reference to March 18, 2019, in the proof of
service is contained in the space on the form reserved for the hearing date, not the date of
service.

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all charges and the parties were ordered to return on April 16, 2019. The court did not
mention the People’s DEJ determination.
Thereafter, the matter came on for hearing on April 16, 2019, May 2, 2019,
May 30, 2019, June 18, 2019, and July 2, 2019. Each time, the matter was continued at
the request of minor’s counsel.
On July 16, 2019, minor’s counsel filed a motion to suppress evidence and
statements, and asked that the matter be continued for further investigation.
On July 30, 2019, minor’s counsel withdrew the suppression motion, and minor
entered a plea to the misdemeanor vandalism offense alleged in count 1 of the petition.
The People dismissed the gang enhancement to count 1, and the substantive gang offense
alleged in count 2 of the petition.
At a disposition hearing on August 22, 2019, the juvenile court placed minor on
probation for six months.
It is undisputed that DEJ was not discussed during any of the hearings in this
matter.
DISCUSSION
I. DEJ Commitment
Minor contends the juvenile court reversibly erred by failing to conduct a hearing
to determine his suitability for the DEJ program, and the matter therefore must be
conditionally reversed and remanded for the juvenile court to determine his suitability for
DEJ. We disagree.
DEJ is a program that was enacted as part of The Gang Violence and Juvenile
Crime Prevention Act of 1998, which “provide[s] that in 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 the successful completion of a term of probation, on the motion of the
prosecution and with a positive recommendation from the probation department, the court

4.
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 C. v. Superior Court (2003) 108
Cal.App.4th 556, 558.)
“To come within the DEJ law’s ambit, a minor must be a first-time felony
offender charged with a crime not listed in section 707, subdivision (b) (serious or violent
offenses creating presumption of unfitness for juvenile jurisdiction) or Penal Code
section 1203.06 (crimes rendering offender ineligible for probation). (§ 790, subd. (a).)
If a minor meets the eligibility requirements for DEJ, the prosecuting attorney must
provide notice thereof to the minor and the trial court must ‘conduct the necessary inquiry
and exercise discretion to determine whether’ the minor is suitable for DEJ. [Citation.]
A court may deny DEJ to a minor otherwise eligible if it deems the minor unsuitable for
rehabilitation.” (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1324, fn. omitted
(Spencer S.).)
We find instructive the case of In re R.C. (2010) 182 Cal.App.4th 1437, 1440
(R.C.), wherein the district attorney filed a section 602 petition alleging the minor had
committed felony vandalism, and separately determined the minor was eligible for DEJ.
At a subsequent hearing, the minor’s counsel advised the court the parties had reached a
tentative settlement, and the matter was continued several times before being set for a
jurisdictional hearing. (Ibid.) Eventually, the minor admitted to misdemeanor
vandalism; the court found the minor had committed the misdemeanor and exercised
jurisdiction over the minor on that ground. Thereafter, the minor was adjudged a ward of
the court and placed on probation. (Ibid.)
On appeal, the minor argued the juvenile court erred in failing to exercise its
discretion to determine whether he was suitable for DEJ. (R.C., supra, 182 Cal.App.4th
at pp. 1440–1441.) The court of appeal found no error, explaining that the “statutory
scheme does not appear to contemplate that the juvenile court will make a suitability

5.
determination unless the minor admits the offense charged.” (Id. at p. 1443.) Because
the minor had not admitted, or expressed his willingness to admit, the charged felony but
instead admitted a misdemeanor, the juvenile court had no occasion to determine whether
the minor was suitable for DEJ. (Ibid.) Rather, “[a]t that point, the case was no longer
‘before the juvenile court for a determination of whether a minor [was] a person
described in Section 602 because of the commission of a felony offense’ (§ 790,
subd. (a)), and the DEJ procedures were no longer applicable.” (Ibid., citing Spencer S.,
supra, 176 Cal.App.4th at pp. 1324–1327.)
We conclude that this case is governed by R.C., supra, 182 Cal.App.4th 1437. As
our factual summary reflects, the original section 602 petition charged minor with felony
allegations that raised the possibility of DEJ. (§ 790, subd. (a).) The record does not
suggest minor at any point expressed an inclination to admit the felonies alleged in the
section 602 petition. To the contrary, he denied the allegations of the petition until he
ultimately admitted commission of a misdemeanor. At that time, the felony allegations
were dismissed and DEJ was no longer an available option for minor. The DEJ
procedures accordingly became inapplicable. (See Spencer S., supra, 176 Cal.App.4th at
pp. 1328–1329 [holding that the “DEJ law’s exclusion of juvenile misdemeanants from
its benefits” does not violate equal protection].) Because the juvenile court did not
exercise jurisdiction over minor based on a finding that he committed a felony, no
remand for a DEJ suitability hearing is warranted. (R.C., supra, 182 Cal.App.4th at
p. 1443.)
Minor contends R.C. is distinguishable because minor “was never noticed of his
eligibility for DEJ”5 as required by law (§ 792; Cal. Rules of Court, rule 5.800(c)), and
the juvenile court failed to fulfil its “mandatory duty to make certain that appellant had

5 As we have noted, minor initially asserted minor and his parent were personally
served with the notification on the date of the hearing. However, in his reply brief, minor
contends he was never served with the notification.

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been noticed of his DEJ eligibility.” Minor contends the jurisdiction and disposition
orders therefore must be conditionally reversed pending completion of a DEJ suitability
hearing, relying on In re Luis B. (2006) 142 Cal.App.4th 1117 [remanding for DEJ
consideration where the prosecutor failed to determine eligibility for DEJ or provide
notice, the juvenile court failed to conduct DEJ inquiry, and the minor was found to have
committed felony offenses], In re C.W. (2012) 208 Cal.App.4th 654 [remanding for
proper notification and, if requested, DEJ consideration where the record contained no
form JV-751 and there was no evidence such form was sent to the minor or her guardian,
DEJ was not mentioned at any of the hearings, and the minor was found to have
committed felony offenses], and In re D.L. (2012) 206 Cal.App.4th 1240 [remanding
where the court failed to provide notice that the DEJ suitability hearing would be
conducted on a particular date and the minor was found to have committed felony
offenses].
We acknowledge possible defects in minor’s DEJ notification, particularly given
that the proof of service contained in the record is unsigned. However, we note as well
that the proof of service indicates that minor and his parent were served simultaneously
with the petition, notice of the March 18, 2019 hearing on the petition, and the DEJ
citation and notification. Minor and his parent appeared at the March 18, 2019 hearing.
The court found notice had been given as required by law. We therefore struggle to
conclude minor and his parent received no notice of his DEJ eligibility or the applicable
procedures. In any event, in the cases relied on by minor, the applicable DEJ notice
procedures were not followed and the minor was found to have committed felony
offenses. Here, as stated, minor admitted commission of a misdemeanor. The juvenile
court did not exercise jurisdiction over minor based on a finding that he committed a
felony. On these facts, remand for a DEJ suitability hearing is unwarranted.
We conclude the juvenile court did not err.

7.
II. Probation Conditions
As a condition of probation, the juvenile court required minor to submit to a
warrantless search and seizure of his belongings, including his cell phone. The juvenile
court also imposed a condition prohibiting minor from being “in any privately owned
vehicle with more than one person known to [him], or identified to [him] by the probation
officer as being, under the age of eighteen (18) unless accompanied by a parent or
guardian or with permission of the probation officer.” Minor contends the cell phone
search condition is unconstitutionally vague and overbroad, and the vehicle condition is
likewise unconstitutionally overbroad. The People contend the conditions are moot
because minor’s probationary term has expired. Minor concedes his probationary term
has expired, but nonetheless urges us to address the arguments on the merits.
A challenge to a probation condition is generally moot where a juvenile court
ward is no longer subject to that condition. (In re Erica R. (2015) 240 Cal.App.4th 907,
911; see People v. Garcia (2017) 2 Cal.5th 792, 800 [stating that, in light of the
termination of defendant’s probation, “the question of these probation conditions’
validity is now moot with respect to this defendant”].) Minor acknowledges as much, but
contends we must resolve the validity of these conditions if we conclude he is eligible for
DEJ, because the juvenile court will once again have jurisdiction to place him on
probation and set conditions of that probationary term. However, as stated above,
remand for a DEJ hearing is not warranted.
Minor further contends we should rule on these conditions to provide guidance to
the juvenile court on what appears to be standard conditions of probation. Where there is
a matter of broad public interest that is likely to recur, or the same controversy is likely to
recur between the parties, we may exercise our discretion to resolve the issue. (See, e.g.,
People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; In re R.V. (2009) 171
Cal.App.4th 239, 245; see also In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.) This
is not a case that warrants the exercise of our discretion. Our Supreme Court has recently

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provided guidance to juvenile courts fashioning warrantless electronic search
requirements as conditions of probation. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128–
1129.) Minor’s cursory challenge to the driving condition suggests the validity of the
condition turns on the particular facts of his case, and thus is not a matter of public
interest.
We therefore decline to exercise our discretion to determine the validity of these
now moot conditions.
DISPOSITION
The disposition order is affirmed.

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