Filed 10/20/14 In re Erik B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ERIK B., a Person Coming Under the Juvenile Court Law. D064889 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. JCM234188)
v.
ERIK B.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Polly H.
Shamoon, Judge. Affirmed with directions.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr. and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent. At the age of 16, defendant and appellant Erik B. came to the attention of a police
officer when his mother informed the officer she was having a lot of problems with him
and was concerned about his drug use. Erik's mother told the officer where Erik and his
friends usually spent their time together, and the officer found Erik with two of his
friends and spoke to them. During the course of the contact, the officer conducted a
search of Erik and found him in possession of both marijuana and cocaine. Erik was then
charged with possession of the drugs.
After Erik's motion to suppress was denied, a disputed jurisdictional hearing was
held and the charges were found true. Prior to disposition, the mother reported to a
probation officer that she was continuing to have serious disciplinary problems with Erik
and was concerned his involvement with drugs would lead to more grave problems. At a
disposition hearing, the juvenile court committed Erik to a rehabilitation program,
Breaking Cycles.
As we explain, we find no error in the juvenile court's jurisdictional and
dispositional orders. Although the prosecutor failed to give the juvenile timely notice of
his possible suitability for a deferred entry of judgment (DEJ) program under Welfare
and Institutions Code section 790,1 the trial court fully remedied that error by conducting
a DEJ hearing, which showed that Erik was not a candidate for treatment under section
790.
We also reject Erik's supplemental contention that his search, prompted by his
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 2 mother's report of his potential drug use, was unlawful. We do agree with his contention
that he was not given credit for his predisposition detention and direct that he be given
credit.
Thus, we order the trial court to file an amended minute order reflecting Erik's
detention credits. In all other respects, the trial court's order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On Wednesday September 18, 2013, Erik's mother contacted National City Police
Officer Salvador Gil. Erik's mother reported she was having a lot of problems with Erik
and, in particular, his use of drugs. Erik's father had died two years earlier, after having
been incarcerated; Erik's mother believed Erik's father's death was drug related. At the
time Erik's mother contacted police, Erik had not been in school for more than a year.
Erik's mother told Officer Gil where Erik and his friends usually spent their time, and
Officer Gil told Erik's mother he would look for Erik.
Officer Gil found Erik and two of his friends, who were also minors, at
approximately 1:16 p.m. on the day he spoke to Erik's mother. Officer Gil asked them if
they had anything illegal on them or if anyone was on probation. All three individuals
consented to a search. Officer Gil searched Erik and found two cigarettes that contained
a green leafy substance Officer Gil believed was marijuana and a clear plastic bag that
contained a white, crystal-like substance Officer Gil believed was methamphetamine.
The substances were found in Erik's jacket pocket and wallet. Erik was arrested and
transported to the police station.
At the station, Gil tested the green leafy substance and found it was 1.5 grams of
3 marijuana. The crystal-like substance found on Erik was later tested and determined to
be cocaine.
On September 20, 2013, the San Diego County District Attorney filed a petition
pursuant to Welfare and Institutions Code section 602 alleging that Erik committed two
misdemeanor violations: possession of a controlled substance, methamphetamine (Health
& Saf. Code, § 11377, subd. (a); count 1) and possession of marijuana (Health & Saf.
Code, § 11357, subd. (b); count 2). Erik denied the allegations.
On October 15, 2013, an amended petition was filed alleging that Erik committed
felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 1) and
misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b); count 2).
Erik denied the amended allegations.
On October 16, 2013, the juvenile court denied Erik's motion to suppress, found
the allegations in counts 1 and 2 true, and sustained the petition.
On October 25, 2013, at a special hearing, Erik's counsel informed the juvenile
court that Erik had not been notified of his eligibility for DEJ treatment under section
790. In response to the information provided by counsel, the juvenile court set a DEJ
hearing. The juvenile court denied Erik's request to set aside its jurisdictional findings
and stated: "If the court grants the 790, then I must set aside the true finding that was
made at the adjudication, and if the court denies the 790, then we continue the effect of
the judgment that was made at the adjudication."
At the DEJ hearing, the court considered a probation report, which recommended
that section 790 treatment be denied. The recommendation was based in part on reports
4 from Erik's mother about the difficulty she was having controlling Erik. The probation
report stated: "Ms. [S.] reported that the minor has major behavioral issues at home. She
stated that Erik's behavior took a turn for the worst around July 2013. She reported that
Erik is extremely disrespectful towards her, does not follow her directives, leaves home
without permission, does not abide by curfew, and has failed to return home on some
occasions. He has been very aggressive in the past and has broken two televisions and
punched holes in the wall. Erik refuses to attend school and has not attended school for
over a year. According to Ms. [S.], she has attempted to enroll Erik in various schools, to
no avail. Regarding Erik's substance abuse issue, she stated that Erik is using marijuana,
alcohol, and possibly other drugs. She reported that during August, Erik was taken to the
hospital for alcohol intoxication. She also found a letter written by the minor with
suicidal thoughts. The minor was admitted to Mesa Vista, held on a 72 hour hold, and
released within 48 hours with a diagnosis of depression. She also stated that the minor is
associating with negative peers. She reported that it seems like Erik blames himself for
the death of his father because he was not there to help his father with his drug addiction.
Ms. [S.] expressed she is in need of additional support, as she cannot control the minor."
The court denied appellant's request for DEJ and confirmed its true finding made at the
jurisdictional hearing.
In denying Erik his request for treatment under section 790, the juvenile court
stated: "The great concern that I have with this is the totality of the circumstances that
Erik comes here with. And in addition to what the prosecutor has just mentioned, the
great concern that I have for some level of violence is Erik's violence to himself. There
5 [have] been prior issues, suicide ideations, one instance he was found with a knife in a
letter that was written by Erik noting that he was so depressed after his father's death that
he didn't want to live. And it's that type of risk to himself, as well as the risk that he
poses to others -- on two separate occasions he was suspended from school, both for
major defiance with teachers, and I think that coupled with the fact that over and over
again, mom has been trying to get him into stabilized school [sic] and cannot succeed,
that he has continued to use drugs over and over again, despite the fact that there have
been some interventions in trying to modify that behavior.
"It's not that he can't have treatment, education and rehabilitation in the juvenile
justice system. 790 is a more informal way of doing it. It's less supervision. And what
he has shown . . . by his prior actions is he needs formal supervision, not the supervision
he would get under 790."
Having denied section 790 treatment, the juvenile court then proceeded to enter a
disposition on its earlier finding of jurisdiction. The court ordered that Erik be
committed to the "Breaking Cycles" program and released him to home supervision in
the custody of his mother.
DISCUSSION
I
In his principal argument on appeal, Erik claims the juvenile court should have
vacated its jurisdictional finding and only then should it have held the hearing on his DEJ
suitability. He also contends that the juvenile court erred in denying his application for
DEJ. We find no error in the manner in which the juvenile court considered Erik's
6 application for DEJ and in its order denying his application.
A. Section 790 et seq.
"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. The
sections provide 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 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
(Martha C.).)
"To be admitted to the DEJ program, a minor must be eligible under section 790,
subdivision (a)." (Martha C., supra, 108 Cal.App.4th at p. 560.) As Erik asserts and the
Attorney General acknowledges, at all material times he was eligible for consideration
for DEJ under section 790, subdivision (a), which occurs "if all of the following apply:
[¶] (1) The child is 14 years or older at the time of the hearing on the application for
deferred entry of judgment; [¶] (2) The offense alleged is not listed in section 707(b); [¶]
(3) The child has not been previously declared a ward of the court based on the
commission of a felony offense; [¶] (4) The child has not been previously committed to
the California Department of Corrections and Rehabilitation, Division of Juvenile Justice;
7 [¶] (5) If the child is presently or was previously a ward of the court, probation has not
been revoked before completion; and [¶] (6) The child meets the eligibility standards
stated in Penal Code section 1203.06 [for probation]." (Cal. Rules of Court, rule
5.800(a);2 see Martha C., at pp. 558–559.)
Importantly, rule 5.800(b) specifies: "Before filing a petition alleging a felony
offense, or as soon as possible after filing, the prosecuting attorney must review the
child's file to determine if the requirements of [rule 5.800](a) are met. If the prosecuting
attorney's review reveals that the requirements of [rule 5.800](a) have been met, the
prosecuting attorney must file Determination of Eligibility--Deferred Entry of Judgment--
Juvenile (form JV-750) with the petition." (First italics added.) If the prosecuting
attorney finds the minor is eligible for DEJ treatment, "the prosecuting attorney shall file
a declaration in writing with the court or state for the record the grounds upon which the
determination is based, and shall make this information available to the minor and his or
her attorney." (§ 790, subd. (b).) "If it is determined that the child is ineligible for
deferred entry of judgment, the prosecuting attorney must complete and provide to the
court, the child, and the child's attorney Determination of Eligibility--Deferred Entry of
Judgment--Juvenile (form JV-750)." (Rule 5.800(e).)
The trial court has the ultimate discretion to rule on the suitability of the minor for
DEJ after consideration of the factors specified in rule 5.800(d)(3) and section 791,
subdivision (b), and based upon the "'standard of whether the minor will derive benefit
2 All further references to rules are to the California Rules of Court 8 from "education, treatment, and rehabilitation" rather than a more restrictive
commitment. [Citations.]'" (Martha C., supra, 108 Cal.App.4th at p. 562, italics
omitted, quoting In re Sergio R. (2003) 106 Cal.App.4th 597, 607 (Sergio R.).)
"The court may grant DEJ to the minor summarily under appropriate
circumstances ([former] rule 1495(d) [now rule 5.800(d)]), 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.' ([Former] [r]ule 1495(f) [now
rule 5.800(f)], italics added.) While the court retains discretion to deny DEJ to an eligible
minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ
and furnish notice with the petition is mandatory, as is the duty of the juvenile court to
either summarily grant DEJ or examine the record, conduct a hearing, and make 'the final
determination regarding education, treatment, and rehabilitation . . . .' [Citations.] Use of
the mandatory language 'shall' indicates a legislative intent to impose a mandatory duty;
no discretion is granted. [Citation.] '"'"Shall" is mandatory, . . . "may" is permissive.'
[Citation.]" [Citations.]' [Citation.] 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 (Luis B.).)
As here, the prosecuting attorney in Luis B. failed to consider whether a minor was
eligible for DEJ treatment and no DEJ hearing was ever conducted by the juvenile court.
This error required that the trial court's jurisdictional findings and dispositional orders be
9 set aside but not vacated entirely. (Luis B., supra, 142 Cal.App.4th at p. 1123.) Rather,
in its order remanding the case to the trial court for a DEJ hearing the Court of Appeal
directed: "If, as a result of those proceedings, the juvenile court grants DEJ to defendant,
it shall issue an order vacating the findings and orders. If the juvenile court denies DEJ
to defendant, it shall make its order continuing in effect the judgment, subject to
defendant's right to have the denial of DEJ and the findings and orders reviewed on
appeal. [Citation.]" (Id. at pp. 1123-1124, fn. omitted.)
B. Analysis
Here, upon learning the prosecutor had failed to discharge his duty and consider
Erik's DEJ eligibility, the juvenile court provided Erik with the same relief the Court of
Appeal ordered in Luis B.: a DEJ hearing. The juvenile court's unwillingness to vacate its
earlier findings entirely, but instead to forego acting on those findings until it determined
whether DEJ was appropriate for Erik, in no manner prejudiced Erik. First, the juvenile
court's ruling on the DEJ request makes it clear the circumstances of the underlying
offenses had very little to do with its DEJ decision. As the juvenile court's ruling
indicates, it was far less concerned about the underyling offenses than Erik's behavior at
home, his mental health, and the level of support he needed. Secondly, nothing in section
790 et seq. prevents a court from considering the circumstances of the charged offense in
determining whether to order DEJ. (See § 791, subd. (b); rule 5.800(d)(3).) Indeed, in
Sergio R., supra, 106 Cal.App.4th at page 608, the court relied almost entirely on the
circumstances of the charged offenses in affirming the juvenile court's order denying
DEJ.
10 In sum, the juvenile court acted properly in holding a DEJ hearing after being
advised about the prosecutor's failure to consider Erik's eligibility for DEJ. The juvenile
court was not required to vacate its earlier jurisdictional findings.
Contrary to Erik's contention, the juvenile court did not abuse its discretion in
denying him DEJ. As we have noted, the juvenile court was very concerned about Erik's
previous behavior, repeated abuse of drugs, level of violence and his mother's failed
attempts to stabilize him. Of obvious concern as well was Erik's failure, for over a year,
to attend school. Another area of concern was Erik's reported depression and his failure
to attend counseling. Given these circumstances, Erik was plainly not a candidate for the
more relaxed supervision a DEJ program provides. (See Sergio R., supra, 106
Cal.App.4th at p. 608.)
II
By way of a supplemental brief, Erik contends that under the holding in In re J.G.
(2014) 228 Cal.App.4th 402 (J.G.), he was unlawfully detained before he consented to be
searched and therefore his consent, as the fruit of an unlawful detention, was invalid. The
holding in J.G. is readily distinguishable.
A. Search of Erik
According to Officer Gil, after talking to Erik's mother about the problems she was
having with him, he drove to Erik's friend Rashad's house, where he found Erik, Rashad
and a third juvenile, Emmanuel. Gil called out to the boys as he got out of his police car,
and they started walking towards him. They met at some point in front of Gil's car, and
he asked them if they had anything illegal on them or if any of them was on probation.
11 They all answered in the negative. Officer Gil then asked them to sit on the curb in front
of his car while he waited for a backup officer and ran warrant checks on the boys.
According to Officer Gil, he asked them to sit on the curb as a safety measure because he
was by himself and waiting for his cover unit. All three agreed to sit on the curb and
according to Officer Gil, "I even told them they were not under arrest." Officer Gil then
asked the boys if he could search them. All three consented to be searched and, during
the course of searching Erik, Officer Gil found the contraband that gave rise to the
petition alleging his delinquency. At some point during the contact, a backup officer
arrived on the scene; at the time of the hearing on Erik's motion to suppress, Officer Gil
could not recall whether the backup officer arrived before or after he asked for consent to
search Erik and his two companions.
Emmanuel testified at the hearing on the motion to suppress and stated that he felt
free to leave from the beginning of the contact and even when Officer Gil told the boys to
sit down: "Like it wasn't anything to be made of a big deal though. It was just like, oh,
like, what are you doing type . . . ."
Rashad and Erik testified that they did not feel free to leave and that Erik only
consented to be patted down by Officer Gil.
In denying the motion to suppress, the trial court found that, under the totality of
the circumstances, a reasonable person would have felt free to leave at the point in time
when Officer Gil asked for consent to search. In making that finding, the trial court
expressly found that Officer Gil's testimony and Emmanuel's testimony were more
credible than Rashad's or Erik's. The trial court also found that in fact Erik consented to
12 be searched rather than simply patted down. Again, the trial court found that Officer Gil
was more credible and that in fact Erik consented to a search rather than a pat down.
B. Search in J.G.
In contrast to the search of Erik, in J.G. the parties agreed there were no
circumstances that supported any detention of the juvenile. Moreover, the juvenile was
confronted with a considerable level of force and intimidation at the time he was asked to
consent to a search. In J.G., the juvenile and his brother were approached by a police
officer, questioned about whether they had anything illegal on them, and then asked to sit
on a curb. While sitting on the curb, and backed up at that point by three other officers,
one of whom had displayed a weapon, the juvenile was asked whether the officer could
search his backpack. The juvenile consented. In finding that the juvenile and his brother
were unlawfully detained at the time they were asked to sit on the curb, and that the
juvenile's later consent was therefore invalid as the fruit of the unlawful detention, the
court relied to a significant extent on the officer's accusatory questions. (J.G., supra, 228
Cal.App.4th at p. 412.) Those questions are of course similar to the ones Officer Gil
asked in this case. However, the court also relied on the considerably higher level of
force deployed at the time consent was requested. (Ibid.) Importantly, the court noted
that at no time were J.G. and his brother told that they were free to leave: "[I]f Officer
Woelkers had told J.G. that he was free to decline to sit on the curb, any subsequent
acquiescence on J.G.'s part would have strongly suggested that he had not been detained."
(J.G., at p. 413, fn. 9.)
13 C. Analysis
Although in some respects the record here is similar to the situation the court
considered in J.G., in material respects it is quite different. First, unlike the situation the
court confronted in J.G., here, there were articulable circumstances that supported
detention of Erik and his companions. Officer Gil had been informed by Erik's mother
that she was very concerned about him, about his companions, and his drug use. Shortly
thereafter, Officer Gil found the boys not in school during school hours. Both the report
of Erik's drug use and his absence from school during school hours supported detention
of the boys. (See In re Humberto O. (2000) 80 Cal.App.4th 237, 240-241 [minor under
the age of 18 found out of school during school hours may be detained to determine
truancy]; accord, In re James D. (1987) 43 Cal.3d 903, 917-918.).) Thus, even if the
boys were detained, the detention was not unlawful and would not therefore have tainted
their later consent to be searched.
In the alternative, we note the testimony of Emmanuel, who stated that the stop
was not a very big deal and that he believed he was free to leave. We also have Officer
Gil's statement to the boys that they were not under arrest. These circumstances—
Emmanuel's belief he was free to leave and Officer Gil's statement to the boys—take this
case well outside the holding in J.G. and fully support the trial court's determination that,
under the totality of the circumstances, the boys were not detained and again that Erik's
consent was therefore not the fruit of an unlawful detention.
In sum, because there was no unlawful detention, Erik's later consent to be
searched was valid.
14 III
Erik argues that in calculating his maximum term of confinement, the trial court
failed to give him credit for time he spent in predisposition custody. Erik contends he
was in custody for a total of 41 days: from September 18, 2013 to October 2, 2013, and
then again from October 5, 2013 to October 30, 2013. The Attorney General agrees Erik
is entitled to 41 days of predisposition credits. Given these circumstances, we may direct
Erik be provided predisposition credits by way of a minute order. (See In re J.M. (2009)
170 Cal.App.4th 1253, 1257.)
DISPOSITION
The court is ordered to file a minute order reflecting that Erik B. is entitled to 41
days of predisposition credit. In all other respects, the judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.