In re Joseph S. CA4/3 ( 2016 )

Filed 2/4/16 In re Joseph S. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re JOSEPH S., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
G050790
Plaintiff and Respondent,
(Super. Ct. No. DL049350)
v.
OPINION
JOSEPH S.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Julian W.
Bailey, Judge. Affirmed.
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina
Y. Lane-Erwin and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and
Respondent.
Joseph S., a minor, appeals from the judgment entered after the juvenile
court terminated his participation in a Deferred Entry of Judgment (DEJ) program (Welf.
& Inst. Code, § 790, subd. (a); all further undesignated statutory references are to this
code). Appellant was found to have committed felony arson of property (Pen. Code,
§ 451, subd. (d), misdemeanor vandalism (Pen. Code, § 594 subd. (a), (b)(2)(A), and
misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). Appellant had been in his
DEJ program for only two months when he pulled a fire alarm at his high school while
classes were in session – an act he concedes was “thoughtless,” “risky” and
“inexcusable.”
Appellant nonetheless argues it was an abuse of discretion for the juvenile
court to terminate his participation in the DEJ program because there was evidence he
was otherwise benefitting from the program. We cannot agree. Termination of a DEJ is
appropriate under three circumstances, one of which is when the court concludes “the
minor . . . is not complying with the terms of the minor’s probation.” (§ 793, subd. (a).)
In this case, one of the terms of appellant’s probation was that he obey all laws, and the
juvenile court expressly found that his act of pulling the fire alarm was a violation of law.
Appellant does not dispute that point on appeal.
The judgment is affirmed.
FACTS
In April 2014, appellant (then 15 years old) was arrested with three other
minors at an elementary school in Tustin, after police received reports of a suspected
burglary. Appellant and two of the other minors had backpacks containing spray paint,
rags, and bottles filled with flammable liquids. Appellant also had a cell phone
containing a video of himself and the other minors lighting and throwing a Molotov
cocktail.
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In addition to apparent fire damage, the school had several damaged air
conditioning units and 10 broken skylights. Appellant admitted to the police that he and
the other minors broke the skylights and lit a Molotov cocktail.
The prosecutor subsequently determined appellant was eligible for DEJ and
the probation department concurred, recommending the court order DEJ along with
specified probation conditions.
On June 2, 2014, appellant waived his rights and admitted the allegations of
the petition, as is required for DEJ. (§ 791, subd. (a)(3).) Appellant also signed a DEJ
“Program Contract” that required him to “obey all laws” and expressly stated he
understood he could be terminated from DEJ if “the Court determines any of the
following to be true: [¶] I am not performing satisfactorily in the DEJ program [¶] I am
not complying with the terms of this contract [¶] I am not benefitting from education,
treatment, or rehabilitation [¶] I become involved in conduct that violates the law.”
(Italics added.)
The juvenile court found the maximum period of confinement for the
offenses to be three years eight months, and ordered DEJ for a two year period, along
with probation on specified terms and conditions. One of the probation conditions
required appellant to “obey all laws.” If appellant complied with those terms, the charges
against him would be dismissed in June 2016.
The juvenile court set an initial DEJ progress review hearing for August 19,
2014. Five days before the hearing, the probation department filed a brief report
reflecting appellant’s “academic progress and class room behavior is excellent except for
a recent incident of pulling the fire alarm.” (Italics added.) The incident occurred during
the school day, and appellant was suspended from school for two days.
The probation department recommended continuing appellant’s DEJ, but
the juvenile court disagreed. Based on appellant’s act of pulling the fire alarm, and a
finding that appellant is “a dangerous individual,” the court ordered DEJ terminated. As
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the court explained to appellant, “Your conduct in this case that brought you before the
court was extraordinarily dangerous and you have now pulled a fire alarm at school and I
don’t believe that the limited supervision provided through this deferred entry of
judgment program is appropriate.” The court later clarified that its termination decision
was based on the fact appellant “didn’t comply with the terms of his contract. He was not
benefitting from the education, treatment and rehabilitation and became involved in
conduct that violated the law, to wit: pulling the fire alarm at [his] high school.”
The juvenile court held a disposition hearing on September 29, 2014, and
allowed appellant to put on additional evidence reflecting that he was performing well in
school and had exhibited no problems other than pulling the fire alarm. Appellant then
asked the court to reconsider its decision to terminate DEJ, but the court declined to do
so. The court explained that “when a youth who has been given the opportunity to have
deferred entry of judgment on a case as serious as [this one] pulls the fire alarm, which
again is an act that is in defiance of the law, [and] causes a direct effect on the fire
department . . . , he is not an appropriate person to continue on that.”
The juvenile court declared appellant to be a ward of the court pursuant to
section 602 and placed on formal supervised probation. He was also ordered to spend 30
days in the Orange County Juvenile Hall, consisting of 48 hours in custody followed by
the balance of his commitment served at home under the Alternative Custody Program.
DISCUSSION
Appellant contends the juvenile court abused its discretion by terminating
his DEJ and refusing to reinstate it. Specifically, he argues that contrary to the court’s
conclusion, the evidence showed (1) he was benefitting from the education, treatment or
rehabilitation he was receiving under the DEJ program, and (2) his otherwise stellar
performance while in the program outweighed his one inappropriate act of pulling the fire
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alarm, thus demonstrating his overall performance in the program should be deemed
satisfactory.
We find no error in the juvenile court’s order. Section 793, subd. (a), sets
forth alternative justifications for terminating DEJ: “If it appears . . . that the minor is not
performing satisfactorily in the assigned program or is not complying with the terms of
the minor’s probation, or that the minor is not benefiting from education, treatment, or
rehabilitation, the court shall lift the deferred entry of judgment and schedule a
dispositional hearing.” (§ 793, subd. (a), italics added.) Thus, if the court finds any of
those things to be true, lifting the DEJ is justified.
Here, the juvenile court found not only that appellant’s act of pulling the
fire alarm demonstrated he was not benefitting from the education, treatment or
rehabilitation offered in his DEJ program, but also that doing so constituted a violation of
law and the terms of appellant’s DEJ contract. That finding – which appellant does not
dispute – necessarily demonstrates he also committed a very serious violation of the
terms of his probation, which explicitly required him to obey all laws. And because such
noncompliance, standing alone, justifies termination of appellant’s DEJ, the court did not
abuse its discretion by ordering it.
Appellant’s argument, which explicitly urges that his violation of probation
must be balanced against the more positive aspects of his behavior while in the DEJ
program, is simply misplaced. There is no such requirement in the statute. But even if
there were, that argument would have very limited persuasive effect in a case such as
this, where appellant’s violation of law was committed only two months into his 24
month program. Committing a new crime two months after entry into the DEJ program
does not look like a satisfactory performance, no matter how it is portrayed. Instead,
what it looks like is a minor who was determined to test the juvenile court’s limits – and
found them.
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DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.
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