1 Filed 9/24/14 In re C.G. CA1/3 Opinion following rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re C.G., a Person Coming Under the Juvenile Court Law.
PEOPLE, Plaintiff and Respondent,

v. C.G., Defendant and Appellant. A140135
(San Mateo County Super. Ct. No. JV81137)

In re C.G., a Minor, On Habeas Corpus. A141593

This is an appeal from the jurisdictiona l and dispositional orders of the juvenile court in juvenile delinquency proceedings invo lving minor C.G. Minor raises three legal issues on appeal, all of which are conceded by the People. Having reviewed the record, we agree with the parties th at the challenged orders must be reversed and the matter remanded to the juvenile court to co rrect certain errors made therein.

FACTUAL AND PROCEDURAL BACKGROUND On August 5, 2013, a juve nile wardship petition was file d pursuant to Welfare and Institutions Code section 602, subdivision (a) (the petition) alleging that minor committed an attempted residential burglary and cons piracy to commit attempted residential2 burglary. 1 On September 10, 2013, a contested ju risdictional hearing was held at which the following evidence was presented. On August 2, 2013, betw een approximately 8:00 and 8:45 a.m. in Menlo Park, minor and another youth were riding bicycl es in the neighborhood near 14th and 18th Avenues. Both boys were wearing hats. Upon arriving at the residence at 860 14 th Avenue, where a family with three children lived, the boys left their bicycles and approached the front door. Neighbors observed one of the boys, later identified as minor, first knock on the door and ring the door bell, before “kind of lean[in] into th e door as if he was tr ying to hear sound from inside the house.” The neighbor then saw minor peer into the window to the left of the front door, before gaining entry into the ya rd through a gate on the left side of the
house. A short time later, the 16-year-old gi rl who lived in the home heard a noise outside her bedroom window. Upon peek ing through her window, she observed a person wearing a colorful beanie hat, late r identified as being worn by the other youth. When police responded to the scen e, the officer observed a corner of the
screen to the window was bent and actua lly pulled away from the windowsill. A neighbor later identified minor as one of the boys who had been seen entering or exiting the pathway to the side of the house. The same morning, another reside nt of this neighborhood was awoken by someone knocking on her front door. When she answered the door, she saw a boy wearing a baseball hat, later identified as minor, looking through the window next to the door. Minor nervously asked her, “Is Christian there?” Th e resident did not know any person named Christ ian, so closed the door before opening it again to ask
for “Christian’s” last name. Before turn ing around and leaving on his bicycle, minor responded with a name sounding like “Aguilara .” The resident called the police.

1 All subsequent statutory references are to the Welfare and Institutions Code unless otherwise noted.3 A short while later, Sa n Mateo Deputy Sheriff Mi chael Arguel responded to the reports of suspicious ac tivity in the area between 14t h Avenue and 18th Avenue. He quickly located two boys wearing ha ts and riding bicycl es who matched the description of the suspects. One of th ese boys was minor. When approached by Deputy Arguel, the boys av oided eye contact and appear ed nervous and excited. Deputy Arguel asked to speak with the boys, at which time minor volunteered that he was on probation in San Mateo County. Deputy Arguel subsequently recovered a black sock, a possible burglary tool, from the front yard of a nearby residence that
matched a sock found on minor’s friend. Following the contested hearing, the juve nile court found the allegations against minor true. The juvenile court then contin ued minor as a ward, removed him from the custody of his parents, and committed him to the San Mateo County Juvenile Rehabilitation Facilities Camp Glenwood Program. On October 30, 2013, minor filed a time ly notice of appeal and, on April 21, 2014, a related petition for wr it of habeas corpus conte nding that the judgment should be reversed because, among ot her things, he was denied effective assistance of counsel. ( In re C. G., case no. A141593.) Th is court thereafter consolidated minor’s direct appeal with his petition for writ of habeas corpus to promote judi cial efficiency.
DISCUSSION Minor contends, and the People concede, that the following errors occurred below, requiring reversal of the jurisdictional and di spositional orders and re mand to the juvenile court for further proceedings. First, neither the prosecutor nor the j uvenile court met their statutory duties under the Deferred Entry of Ju dgment (DEJ) Program, section 790 et seq. Second, the juvenile court erred in sustaining a finding that minor committed the crime of conspiracy to commit attempted burglary, a crime not cognizable under California law. And, third, the juvenile court erred by failing to discharge its mandato ry duty to indicate
the maximum term of minor’s confinem ent in the dispositional order.4 We agree with each of these contentions and, thus, consistent with the parties’ joint request, reverse the challenged orders and remand this matter to the juvenile court for further proceedings consis tent with this opinion. I. Remand is Necessary for Co mpliance with the DEJ Program. A juvenile court has discretion to grant a minor deferred entry of judgment (DEJ) for a felony offense if he or she is fou nd “suitable” upon cons ideration of certain statutory factors. ( In re Sergio R. (2003) 106 Cal.App.4th 597, 608.) However, prior to this exercise of discretion, a determination must be made regarding whether the minor is in fact eligible for the DE J program based upon an init ial assessment undertaken by the prosecutor. Specif ically, the relevant statutory pr ovision states: “The prosecuting attorney shall review his or her file to de termine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply. If the minor is found eligible for deferred entry of judgment, the prosecuting attorn ey shall file a declaration in writing with the court or state for the record the grou nds upon which the determinati on is based, and shall make
this information available to the minor and his or her attorn ey. Upon a finding that the minor is also suitable for deferred entry of judgment and would be nefit from education, treatment, and rehabilitation efforts, the c ourt may grant deferred entry of judgment. Under this procedure, the court may set the he aring for deferred entry of judgment at the initial appearance under Section 657. The cour t 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.” (§ 790, subd. (b).) In this case, these statutory requirement s were not met. Specifically, at the time the ward ship petition was filed, the prosecutor properly submitted the mandatory “Determination of Eligibil ity” form. However, the prosecutor erroneously indicated minor was in eligible for DEJ, w ith the result that no5 declaration of eligibility was made in cour t, and no information regarding minor’s eligibility was made available to minor or his attorney. 2 Nonetheless, the parties now agree minor does in fact meet all DEJ eligibility requirements under section 790. In particular , consistent with th e statutory scheme: (1) minor has not previously been declared to be a ward of the court for the commission of a felony offense; (2) the offense charged is not one of the offenses enumerated in section 707, subdivision (b); (3) minor has not previously been committed to the custody of the Division of J uvenile Facilities; (4) minor’s juvenile record does not indicate that probation has ev er been revoked wit hout being completed; (5) minor is at least 14 years of age at the tim e of the hearing; and (6) mi nor is eligible for probation pursuant to Penal Code section 1203.06. 3 (§ 790, subd. (a)(1)-(6).) Accordingly, in light of the prosecuto r’s and the juvenile court’s failures to comply with the identified requirements of the DEJ program, we reverse the jurisdictional order, as well as the underlying findings, a nd the dispositional order,

2 “The DEJ provisions of section 790 et se q. were enacted as pa rt of Proposition 21, The Gang Violence and Juvenile Crime Prev ention Act of 1998, in March 2000. The sections provide that in lieu of jurisdic tional and dispositional hearings, a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment. Entry of judg ment is deferred. After the successful completion of a term of probation, on the motion of the prosecu tion and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile co urt proceeding are sealed. (§§ 791, subd. (a)(3), 793, subd. (c).)” ( Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)

3 The record reflects the prosecutor checked off most of the boxes on the Determination of Eligibility form indicating minor met the identified requirements for entry into DEJ. However, the prosecutor le ft unchecked the boxes relating to whether minor had been on, and su ccessfully completed, pr obation, before ultimately identifying him as ine ligible for DEJ. According to the People, this error may have been made because, although th e record does not indicate minor’s probation status had previously been revoked (§ 790, subd. (a)(4)), it does indi cate minor had committed at least three probation violations. (See In re T.P. (2009) 178 Cal.App. 4th 1, 4 [a minor who commits a probation viola tion but is not subject to probation revocation remains eligible for DEJ; howeve r, whether the minor is suitable for DEJ is left to the court’s discretion].)6 and remand the matter for fu rther proceedings under section 790 et seq. Moreover, given this outcome, we need not address minor’s remaining arguments with respect to the DEJ, including those rela ted to the effectiveness of his assistance from counsel,
that are raised in his dire ct appeal or rela ted petition for ha beas corpus. II. The Sustained Allegation of Conspiracy to Commit Attempted Burglary Must Be Reversed. Minor and the People further agree that th e juvenile court erred in sustaining the allegation that minor conspired to commit attempted burglary because “conspiring to merely attempt to comm it a crime, rather than to commit it, is itself not a crime.” We again agree.
It is established law that the crime of conspiracy does not lie for the commission of attempted crimes. “[A] c onspiracy consists of two or more persons conspiring to commit any crime. A conviction of conspira cy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such an agreement’ in furtherance of the conspiracy.” ( People v. Morante (1999) 20 Cal.4th 403, 416 [fn. omitted].) And, as explained in People v. Iniguez (2002) 96 Cal.App.4th 75, a case involving the crimes of conspira cy and attempted murder: “[T]he targeted crime of the conspiracy, attempted murder, requires a spec ific intent to actua lly commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an
ineffectual act. No one can simu ltaneously intend to do and not do the same act, here the
actual commission of a murder. This inconsistency in requir ed mental states makes the purported conspiracy to commit attempted murder a legal falsehood.” ( Id . at p. 77.) We conclude the reasoning in People v. Iniguez applies squarely in this case, given that the alleged offense of a ttempted burglary, like attempted murder, is a specific intent crime requiring intent to commit burglary and a di rect but ineffectual act in furtherance of the burglary. (Pen. Code, §§ 21a, 664, 459. ) Simply put, minor could not have conspired to commit only an ineffectual act toward the commission of the intended burglary. ( People v. Iniguez, supra, 96 Cal.App.4th at pp. 77, 79.)7 Accordingly, we agree with the parties the juvenile court erred in sustaining the allegation that minor committe d the nonexistent offense of conspiracy to commit attempted burglary. The sustained al legation should therefore be reversed.
III. The Juvenile Court Erred by Failin g to Indicate the Maximum Term of Minor’s Confinement. Finally, minor contends, and the People ag ree, the juvenile court erred by failing to calculate and specify in th e dispositional order or on the record minor’s maximum term of confinement at the San Mateo County Juvenile Rehabilitation Facilities Camp Glenwood Program, the juvenile facility in which he was pl aced. The parties are again

correct. The applicable code provisions are quite clear. “If the minor is removed from the physical custody of his or her parent or guard ian as the result of an order of wardship made pursuant to S ection 602, the order sha ll specify that the minor may not be held in physical confinement for a pe riod in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (§ 726, subd. (d).) See also In re Julian R. (2009) 47 Ca1.4th 487, 497 [the maximum term may be stated by the court on the record or written in the confinement order].) “[P]hysical confinement” incl udes “placement in a juvenile hall, ranch, camp, forestry camp or secure juveni le home pursuant to Section 730, or in any ins titution operated by the Youth Authority.” (§ 726, subd. (d).) Here, the juvenile court removed minor from his parents’ custody and placed him in the San Mateo County Juvenile Rehabi litation Facilities Camp Glenwood Program, a juvenile camp within the m eaning of section 726, subdivisi on (d). However, in doing so, the juvenile court fail ed to discharge its manda tory duty under section 726, subdivision (d), to indicate , in the order or on the r ecord, the maximum term of
minor’s confinement. (§ 726, subd. (d); In re Julian R., supra, 47 Cal.4th at p. 491.) Accordingly, we agree with the parties that if, on remand, the juvenile court should8 determine minor’s placeme nt in the camp, in lieu of DE J, is the proper disposition in this matter, it must then de termine and specify the maximu m term of his confinement.
DISPOSITION The jurisdictional order is reversed as well as the underlying findings; the dispositional order is reversed, and the matter is re manded to the j uvenile court for further proceedings consistent w ith the opinions reached herein.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ Pollak, Acting P. J.

_____________ ____________ Siggins, J.