Filed 1/8/15 In re Juan A. CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re JUAN A., a Person Coming Under the Juvenile Court Law. B252829

THE PEOPLE,
Plaintiff and Respondent,

v.
JUAN A.,
Defendant and Appellant. (Los Angeles County Super. Ct. No. GJ29983)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Nancy S. Pogue and Robert Levent er, Commissioners. Affirmed.

Laini Millar Melnick, under appointmen t by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Steven D. Matthews and Analee J. Brodie, Deputy Atto rneys General, for Plaintiff and Respondent.

_____________ _______________ ______________2 The juvenile court found a ppellant Juan A. committed the crime of using force or
violence to resist an ex ecutive officer in the performance of his duty. (Pen. Code, § 69.)
We affirm.
FACTS At around 3:30 in the afternoon, Lo s Angeles County Deputy Probation Officer Thomas Wilcox was supervising a group of four youths in a restroom at Challenger, a Probation Department camp in Lancaster, when Juan left his bed without permission and walked into the restroom without permission. Deputy Wilcox told Juan to return to his bed. Juan did not comply. Deputy Wilcox told Juan a second time to return to bed. Juan again did not comply. Instead, Juan walked ove r to and faced a toilet, and either prepared to urinate or did begin to urinate. Depu ty Wilcox again ordere d Juan to leave the
bathroom. At about this same time, Deputy Wilcox “gave [Jua n] a left touch prompt on the side” to get him to leave. Juan shrugged his shoulders, turned around, and started to walk out of the bathroom. Deputy Wilcox be gan walking next to Juan and “didn’t think there was a problem,” but then Juan abruptly turned and punc hed the deputy on the side of his face with a closed fist. A strugg le ensued and contin ued until De puty Wilcox subdued Juan with pepper spray. 1

1 The facts are reviewed in the light most favorable to the lower court’s judgment. ( People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Deputy Wilcox testified he could not see whether Juan started to urinate, as the deputy was seeing Ju an’s back. Deputy Wilcox did not hear Juan urinatin g. Another ward did hear Juan start to urinate. Juan testified that he was “peeing in the toilet” when Deputy Wilcox pulled him away from the toilet by the back collar on his shirt. Juan testified he threw a punch while he was being pulled away from the toilet. We accept Deput y Wilcox’s testimony that he gave Juan a “touch prompt” on the side, and that Juan sh rugged his shoulders and turned around himself, the reasonable inference being that Ju an had either finished urinating or stopped himself urinating, and turned away from the toilet on his own. Basically, the evidence, when viewed in the light mo st favorable to the judgment , shows that Deputy Wilcox was walking Juan back out of the bathroom after effectively te lling him, “C’mon, you cannot be in here right now,” and that Juan threw a pu nch at the deputy as he had just started to escort Juan out of the restroom.3 The People filed a petition (Welf. & Inst . Code, § 602) alleging that Juan had committed the crime of using force or violence to resist an execu tive officer in the performance of his duty. (Pen . Code, § 69.) The charge was tried to the juvenile court, at which time the People presented evidence establishing the facts summarized above. At the conclusion of trial, the court found Juan committed the charge d crime and declared him a ward of the court. At the disposition hearing which followed, the court terminated a previous order placing Juan in a community camp placement. The court ordered that “conditions of probation [were to ] remain in effect.” The court ordered Juan suitably placed under the supervision of the probatio n department. As custody was taken from Juan’s parents, the court set a maximum term of confinement of four years and eight
months. Juan filed a timely notice of appeal.
DISCUSSION I. Deferred Entry of Judgment
Juan contends the District Attorney erred in determining that he was ineligible for a deferred entry of judgment (DEJ) program. He asks our court “to remand his case to the juvenile court for a determ ination of suitability” for a DEJ program. Inexplicably, the respondent’s brief filed by the People does not address this contention. We decline to find error on the record before us on appeal. The DEJ process in juvenile proceeding s is governed by secti ons 790 through 795
of the Welfare and Institutions Code. 2 Under this statutory scheme, the prosecutor has a mandatory statutory duty to u ndertake an initial assessment and to make a determination of whether a minor is “eligible” for a DEJ program. 3 When the prosecutor determines that a minor is eligible for a DEJ program, the minor may ag ree that he or she wants to accept DEJ. In such a case, th e matter is presented to the j uvenile court for a hearing on

2 All further undesignated section refere nces are to the Welfare and Institutions Code unless otherwise specified.

3 In making the initial eligib ility determination, the pros ecutor must make findings on whether six identified circ umstances apply. (See § 790, subds. (a)(1)-(a)(6).)4 whether the minor is “suitable” for a DEJ program based upon the consideration of certain statutory factors. The juvenile c ourt has discretion in determining whether a minor is or is not suitable for a DEJ program. ( In re Usef S . (2008) 160 Cal.App.4th 276, 283-284.) As part of the DEJ process, the minor must admit a charged offense. Upon his or her successful completion of a DEJ program , the charge is dismi ssed in accord with statutorily prescribed procedures. (§§ 791, 7 93.) On the other hand, an eligible minor may decide to reject DEJ, obviating the need for a hearing on the issue of his or her suitability for a DEJ program, and a trial ensues on a charged offense. (See In re Kenneth
J . (2008) 158 Cal.App. 4th 973, 979-980.) Section 790, subdivision (b), states: “The prosecuting attorney shall review his or her file to determine whether or not [a minor is eligible for deferred entry of judgment in that] paragraphs (1) to (7), incl usive, of subdivision (a) apply. If the minor is [determined to be] eligible for deferred entry of judgment, the prosec uting attorney shall file a declaration in writing with the court or stat e for the record the gr ounds upon which the determination is based, and shall make this information available to the minor and his or her attorney. Upon a finding th at the minor is . . . suitable for deferred entry of judgment
and would benefit from educati on, treatment, and rehabilitation efforts, the court may grant deferred entry of judgme nt. . . . The court shall make findings on the record that a minor is appropriate for deferred entry of ju dgment pursuant to this article in any case where deferred entry of judgment is granted.” In Juan’s current case, the prosecutor submitted a declaration in conjunction with the filing of the section 602 petition stati ng that she had determ ined Juan to be ineligible for a DEJ program. 4 Based on our review of the reco rd, it does not appear that Juan objected to or otherwise cha llenged the prosecutor’s DEJ in eligibility determination prior to the trial of the charged offe nse, or any other time. Acco rdingly, there was no record developed on the issue of DEJ eligibility, there was no hearing or court finding on Juan’s

4 Section 790, subdivision (b), does not ex pressly speak to what procedures are to be followed when the prosecutor determines th at a minor is ineligible for a DEJ program.5 suitability for a DEJ program, no occasion for Ju an to admit the charged offense, and no indication he was willing to do. On appeal, Juan contends the prosecutor’s determination that he was ineligible for a DEJ program “was wrong.” The implication inherent in Juan’s c ontention is that the prosecutor’s determination should be changed to indicate that he is eligible, meaning that
his case should be remanded to th e juvenile court so that it can evaluate his suitability and
exercise its discretion whether to grant him a DEJ program.
On the record before us on appeal, we decline to fi nd error in the prosecutor’s
determination on the issue of Juan’s DEJ eligibility. The prosecutor’s allegedly
erroneous determination that Ju an was ineligible fo r a DEJ program was the type of error
which could have been addressed and corrected had Juan pointed out th e error. (See, e.g., People v. Simon (2001) 25 Cal.4th 1082, 1103.) Fu rther, had Juan raised a timely objection, the issue would have been developed, preserving a record for review. In this vein, there is nothing in the r ecord to suggest that Juan was willing to admit the charged offense. To permit him to raise the DEJ issu e on appeal would mean that a juvenile could forego admitting a charged offense, and take a chance at trial. Then, if the risk succeeded, there would be no char ge. If the risk proved unsuccessful, a juvenile could appeal and claim an error a ssociated with a DE J eligibility determination without a developed record, and seek to undo the finding of guilt, and then seek a DEJ program with the end goal of having the charges dism issed after the successful completion of the program. We are satisfied that the record before us does not allow for meaningful
examination of the DE J eligibility issue. II. Sufficiency of the Evidence
Juan contends the evidence is insufficient to support th e juvenile court’s finding that he committed the charged crime. Specifi cally, Juan contends the evidence did not establish that Deputy Wilcox was e ngaged in the performance of a legal or lawful duty at the moment that Juan first punched him. In Juan’s words: “Although [he] had disobeyed an order, there was no [lawful] need for Wilc ox to touch him while he was in the process6 of relieving himself.” We find the evidence supports the juvenile court’s determination
that Juan violated Penal Code section 69.
Juan is correct that Penal Code section 69 may be violated in two different ways, and that the theory up on which his case was litigated re quired the prosecution to prove that Deputy Wilcox was engaged in the performa nce of a legal or lawful duty when Juan
used force or violence to resist the deputy. (See In re Manuel G . (1997) 16 Cal.4th 805, 815-816.) Penal Code language concerning an official’s “performance of his duty” has long been interpreted to mean that an aggressor who uses forc e or violence to resist an official may be found to have committ ed a public offens e. If, however, the official/victim is ultimately determined to have been en gaged in an unlawful act, the aggressor may be found to have committed a simple assault or battery, but not an act of violence against an official “‘in th e performance of his duty.’” (Cf. People v. Curtis (1969) 70 Cal.2d 347, 355-356 [discussing Penal Code section 148]; and see also In re Manuel G., supra , 16 Cal.4th at pp. 815-816.) In s hort, Penal Code section 69 requires the prosecution to present evid ence proving a person resisted an executive officer who was engaged in the “ performance of his legal or lawful duty .” We have no doubt that Deputy Wilcox was performing his legal or lawful duty at the time he was supervising a group of camp wards in the restroom area, including when he was giving orders to Juan to leave the rest room and return to his bed, and acting to get Juan to comply with the deputy’s directives. Nonetheless, Juan argues that Deputy Wilc ox’s actions inside the restroom may be parsed into discretely-examined, moment-by- moment increments. Further, that at the precise moment Deputy Wilcox “touched” Juan , the deputy was acti ng in an unlawful manner. Basically, Juan argues a probation ca mp deputy is acting in an unlawful manner whenever he applies any type of physical co ntact upon a ward who is engaged in the act of urinating. Assuming without deciding that a probation camp deputy is never lawfully permitted to impart any type of physical contact upon a urinating ward (whether the contact is a yanking by the shirt collar, or a “prompt touch” on the side), it does not follow that the juvenile court’s finding that Juan violated Penal C ode section 69 must be7 reversed. 5 As we discussed above, the evidence, when viewed in the light most favorable to the judgment, shows that Juan was not urina ting, that he had turned around, and that he had begun walking out of the restroom, wh en he sucker-punched Deputy Wilcox, who was escorting Juan out of the bathroom. Juan ’s use of force or violence did not take place during a time that Deputy W ilcox was purportedly engaged in an unlawful act. For similar reasons, we reject Juan’s ar gument that the eviden ce failed to prove that at the instant he punched Deputy Wilcox, Ju an acted with the inte nt to interfere with or impede the deputy in the performance of hi s legal or lawful duty. Again using Juan’s own words: “[My] punching [Deputy Wilcox] was not . . . an attempt to resist the officer’s performance of his duties, it was a pos t hoc angry and inappropriate response to being physically touched or grabbed while [I] wa s in the act of urinating.” In our view, Juan’s argument is an invitation to our co urt to reweigh the evidence, and substitute a different conclusion for that of the juvenile court. This is not our role on appeal. ( In re
Roderick P . (1972) 7 Cal.3d 801, 809; In re Babak S . (1993) 18 Cal.Ap p.4th 1077, 1088- 1089 [a reviewing court does not reweigh the ev idence; it examines the record in the light most favorable to the judgment to determine whether there is credible evidence, including
reasonable inferences from the evidence, which suppo rts the trier of fa ct’s findings].) A person’s intent is rarely susceptible of direct proof. For this reason, the law has long allowed intent to be inferred from the circumstances surrounding a charged offense, and recognizes that a trier of fact’s reasona ble inferences from the evidence are sufficient
to constitute substantial evidence in support of a finding of a particular intent. (See, e.g., People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ceja (1993) 4 Cal.4th 1134, 1138- 1139; People v. Pre (2004) 117 Cal.App.4th 413, 420.) Stated another way, evidence of a person’s state of mind “‘is almost inevita bly circumstantial, but circumstantial evidence
is as sufficient as direct evidence to support a co nviction.’ [Citation.]” ( People v. Rios (2013) 222 Cal.App.4t h 542, 567-568.)

5 Juan has not cited any case which direc tly holds that a camp deputy may never lawfully touch a urinating ward; the People have not cited any case which directly holds that a camp deputy may lawfully touch a urinating ward.8 Here, the juvenile court could reasonably infer that Juan inte nded to disrupt and interfere with Deputy Wilcox’s performance of his legal and lawful duty. The evidence supports an inference that Ju an wanted to disrupt the orde rly operation of the restroom area and that he accomplished his intent. We ha ve no doubt that Juan was, as he says, “angry” when he punched Deputy Wilcox, but the presence of anger does not defeat the further reality that he intend ed to disrupt and interfere w ith the deputy’s performance of his duty.
DISPOSITION The judgment is affirmed.

BIGELOW, P.J.
We concur:

RUBIN, J.

FLIER, J.