Delinquency Case Law

In re Sergio R. (Feb. 25, 2003) 106 Cal.App.4th 597 [131 Cal.Rptr.2d 160]. Court of Appeal, First District, Division 1.

The juvenile court concluded that a child was not an appropriate candidate for deferred entry of judgment (Welf. & Inst. Code, § 790 et seq.), declared him a ward of the court, and ordered him confined at a boys ranch for a maximum period of six years and four months, followed by probation.

The charges were based on several incidents. In September 2001, the child was found leaving the residence of a gang member dressed in clothing indicative of gang affiliation. A search of the child uncovered a pocketknife and a pipe he admittedly used to smoke amphetamine. In October 2001, police officers located a stolen car and stolen personal property at the child's residence. The circumstances indicated that the burglary was associated with gang activity. The child claimed that he minimally participated in the burglary by removing items from the burglarized house and storing them on his property. Soon thereafter, a police officer recovered bags of methamphetamine and marijuana on the child, who admitted that he had used methamphetamine that morning. He was also in possession of a large, black marking pen that he had used to write gang graffiti. The child told officers that he was a gang member and used drugs daily. He had already been expelled from school, and his mother stated that he was beyond her control.

During the proceedings, the district attorney filed a determination of eligibility for deferred entry of judgment under section 790 and rule 1495 of the California Rules of Court. Although the child met the eligibility requirements of the statute, both the probation department and the district attorney opposed deferred entry of judgment. Following a hearing on the matter, the juvenile court agreed and found the child unsuitable to participate in the deferred entry of judgment program. On appeal, the child argued that the juvenile court disregarded the statutory criteria and improperly relied upon the district attorney's speculation and mischaracterization in denying him the benefit of deferred entry of judgment. He further argued that because he had met all the requirements specified by rule 1495, the juvenile court abused its discretion by denying deferred entry of judgment.

The Court of Appeal, in this partially published opinion, concluded that the statutory language empowers, but does not compel, the juvenile court to grant deferred entry of judgment if eligibility is established. The appellate court noted the use of discretionary language throughout section 790 and rule 1495. Rule 1495(a) provides that a juvenile "may be considered for a deferred entry of judgment if all of the following apply … ." (Italics added.) Section 790(b) states that if the child is found eligible for deferred entry of judgment, the district attorney shall file a declaration with the court or state declaring the grounds upon which the determination is based, and the trial court "may set the hearing for deferred entry of judgment at the initial appearance under Section 657." (Italics added.) If the eligibility standards are met, "the court may refer the case to the probation department" for an investigation and report "or the court may summarily grant deferred entry of judgment …" (§ 791(b), italics added; rule 1495(d)(2)). "When directed by the court, the probation department shall make an investigation … [of] mitigating and aggravating factors in determining whether the child is a person who would be benefited by education, treatment, or rehabilitation." (§ 791(b), italics added; rule 1495(d)(3)(A).) The court makes the final decision on whether the child will benefit from "education, treatment, or rehabilitation" (§ 791(b)), and "[i]f the court grants the deferred entry of judgment," certain conditions may be imposed. (Rule 1495(f)(4), italics added; see also § 794.)

In light of the typical rule that "shall" is mandatory and "may" is permissive, and the context of the statutory deferred judgment scheme, the appellate court concluded that the consistent use of permissive rather than mandatory terms manifested a legislative intent to confer discretionary authority upon the juvenile court to act following a determination of eligibility. The appellate court further reasoned that it was necessary to conclude that a grant of deferred entry of judgment to an eligible juvenile was discretionary in order to achieve a result in harmony with the rest of the statute. It found that certain provisions would be rendered meaningless surplussage if the court did not have discretion to deny deferred entry of judgment once the eligibility requirements were satisfied. Therefore, the appellate court concluded that a juvenile court's decision to deny deferred entry of judgment is not an abuse of discretion merely because a child offender has satisfied the eligibility requirements of section 790(a) and rule 1495(a). Rather, the juvenile court must make an independent determination after considering the "suitability" factors specified in rule 1495(d)(3) and section 791(b). The exercise of discretion is controlled by whether the child will derive benefit from "education, treatment, and rehabilitation" rather than a more restrictive commitment. (§ 791(b); rule 1495(b)(2) and (f).)

The appellate court further concluded that the record failed to demonstrate any abuse of discretion by the juvenile court. The district attorney had argued that the child was inappropriate, not ineligible, for deferred entry of judgment. The report filed by the probation department was in agreement. Based on those recommendations the juvenile court concluded that the child was an unsuitable candidate for deferred entry of judgment despite his eligibility. The appellate court further agreed with the juvenile court's assessment. While the child's young age and lack of a prior record militated in favor of deferred entry of judgment, factors such as his gang member status, history of drug abuse, admitted drug addictions, and criminal activity weighed in favor of requiring measures more formal and restrictive than deferred entry of judgment.