In re Frances G. CA4/1

• Court: California Court of Appeal
• Decided: September 29, 2014
• Docket: D065301
• Status: Unpublished

Opinion

Filed 9/29/14 In re Frances G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FRANCES G., a Person Coming Under the Juvenile Court Law. D065301 THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J234154)

v.

FRANCES G.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Richard R.

Monroy, Judge. Affirmed.

Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent. The juvenile delinquency court made a true finding that Frances G. had received

stolen property (Pen. Code, § 496, subd. (a)), a felony. The court declared her a ward and

ordered her placed with her adult sister, under the supervision of the probation officer.

Frances appeals, contending the court violated her due process rights by not holding a

hearing to consider her suitability for deferred entry of judgment (Welf. & Inst. Code,

§ 790) or summarily granting deferred entry of judgment. We affirm.

BACKGROUND

In April 2013, a teacher at Lincoln High School discovered that 21 iPads had been

stolen from a locked cart in a classroom. The theft was reported to the police. In July,

police officers executed a search warrant at the home where Frances lived. They found

one of the iPads in a bedroom she shared with her boyfriend. Frances said the iPad was

hers and her boyfriend had stolen it from a school. She gave her password to a police

officer, who then unlocked the iPad and found "Frances's iPad" in the settings. On the

back of the iPad was the San Diego Unified School District logo.

In September 2013, the district attorney filed a delinquency petition alleging one

count of receiving stolen property. The petition contained a "NOTICE PURSUANT TO

WELFARE AND INSTITUTIONS CODE SECTION 790" stating "The District

Attorney has determined that [Frances] is eligible to be considered by the juvenile court

for a deferred entry of judgment . . . ." The petition explained in detail the procedures for

deferred entry of judgment. There was a statement at the end of the petition

"that . . . [t]he above matter has been set for hearing on Oct[ober 7] . . . ."

2 On October 7, 2013, at readiness hearing, Frances appeared with appointed

counsel. Counsel said she had received the petition and reviewed it with Frances.

Counsel asked that a denial be entered. At counsel's request, the court set dates for a

settlement conference and trial. At the settlement conference, the court confirmed the

trial date. Trial took place in early November and the dispositional hearing took place

later that month. Neither Frances nor her trial counsel ever requested deferred entry of

judgment.

DISCUSSION

The court has a mandatory duty "to either grant [deferred entry of judgment]

summarily or examine the record, conduct a hearing, and determine whether the minor is

suitable for [deferred entry of judgment] . . . ." (In re D.L. (2012) 206 Cal.App.4th 1240,

1243.) "The juvenile court is excused from its mandatory duty to hold a hearing if, after

receiving notice of eligibility for [deferred entry of judgment], the minor nonetheless

rejects [deferred entry of judgment] consideration by contesting the charges." (Id. at

p. 1244, citing In re Kenneth J. (2008) 158 Cal.App.4th 973, 979-980 & In re Usef S.

(2008) 160 Cal.App.4th 276, 285.) Here, Frances "reject[ed] [deferred entry of

judgment] consideration by contesting the charges." (In re D.L., supra, at p. 1244.)

Frances correctly concedes "[t]he prosecutor fulfilled its duty to inform the court

and [Frances] that [Frances] was eligible for a deferred entry of judgment . . . ." In re

Luis B. (2006) 142 Cal.App.4th 1117, on which Frances relies, is therefore

distinguishable; in that case, the prosecutor did not give the required notice. (Id. at

p. 1123.) In re D.L., supra, 206 Cal.App.4th at page 1240, is also distinguishable. There,

3 the probation department filed a report stating D.L. was eligible but not suitable for

deferred entry of judgment. (Id. at p. 1242.) The court summarily found the minor was

not suitable and the minor then entered a denial to the allegations of the petition. (Id. at

pp. 1242-1243, 1245.)

In re Kenneth J., supra, 158 Cal.App.4th at page 973, on the other hand, is

apposite. There, the prosecutor gave the requisite notice. (Id. at p. 977.) A hearing on

deferred entry of judgment was set, but never held. (Id. at p. 978.) Before the date set for

the hearing on deferred entry of judgment, the minor requested a contested jurisdictional

hearing. (Id. at pp. 977-979.) The reviewing court rejected his contention that the

juvenile court had erred by failing to hold a hearing on deferred entry of judgment. (Id.

at p. 976.) The fact that a hearing was set in In re Kenneth J. does not distinguish it from

Frances's case, and the words of the reviewing court there are apt here. "It is perhaps true

the [deferred entry of judgment] statutes make no express provision for a minor in

Kenneth's position, one who is advised of his [deferred entry of judgment] eligibility,

who does not admit the charges in the petition or waive a jurisdictional hearing, and who

does not show the least interest in probation, but who insists on a jurisdictional hearing in

order to contest the charges. But the [deferred entry of judgment] is clearly intended to

provide an expedited mechanism for channeling certain first-time offenders away from

the full panoply of a contested delinquency proceeding. That goal could not co-exist with

a minor who insists on exercising every procedural protection offered, and who then on

appeal faults the juvenile court for not intervening and short circuiting those very

protections." (Id. at pp. 979-980.)

4 DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

MCCONNELL, P. J.

MCDONALD, J.