In re Frances G. CA4/1 ( 2014 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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] . . . ."
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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,
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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.)
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DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
MCCONNELL, P. J.
MCDONALD, J.
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