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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 jurisdictional and dispositional orders of the juvenile 

court in juvenile delinquency proceedings involving 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 that the challenged orders must be reversed and the matter 

remanded to the juvenile court to correct certain errors made therein. 

FACTUAL AND PROCEDURAL BACKGROUND 

 On August 5, 2013, a juvenile wardship petition was filed pursuant to Welfare and 

Institutions Code section 602, subdivision (a) (the petition) alleging that minor committed 

an attempted residential burglary and conspiracy to commit attempted residential 
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burglary.1

 On September 10, 2013, a contested jurisdictional hearing was held at which 

the following evidence was presented. 

 On August 2, 2013, between approximately 8:00 and 8:45 a.m. in Menlo Park, 

minor and another youth were riding bicycles in the neighborhood near 14th and 18th 

Avenues. Both boys were wearing hats. 

 Upon arriving at the residence at 860 14th 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 the door as if he was trying 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 yard through a gate on the left side of the 

house. 

 A short time later, the 16-year-old girl who lived in the home heard a noise 

outside her bedroom window. Upon peeking through her window, she observed a 

person wearing a colorful beanie hat, later identified as being worn by the other 

youth. When police responded to the scene, the officer observed a corner of the 

screen to the window was bent and actually 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 resident 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?” The resident did not 

know any person named Christian, so closed the door before opening it again to ask 

for “Christian’s” last name. Before turning 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. 
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 A short while later, San Mateo Deputy Sheriff Michael Arguel responded to 

the reports of suspicious activity in the area between 14th Avenue and 18th Avenue. 

He quickly located two boys wearing hats and riding bicycles who matched the 

description of the suspects. One of these boys was minor. When approached by 

Deputy Arguel, the boys avoided eye contact and appeared 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 juvenile court found the allegations against 

minor true. The juvenile court then continued 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 timely notice of appeal and, on April 21, 

2014, a related petition for writ of habeas corpus contending that the judgment should 

be reversed because, among other things, he was denied effective assistance of 

counsel. (In re C. G., case no. A141593.) This court thereafter consolidated minor’s 

direct appeal with his petition for writ of habeas corpus to promote judicial efficiency. 

DISCUSSION 

Minor contends, and the People concede, that the following errors occurred below, 

requiring reversal of the jurisdictional and dispositional orders and remand to the juvenile 

court for further proceedings. First, neither the prosecutor nor the juvenile court met their 

statutory duties under the Deferred Entry of Judgment (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 mandatory duty to indicate 

the maximum term of minor’s confinement in the dispositional order. 
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 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 consistent with this opinion. 

I. Remand is Necessary for Compliance 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 found “suitable” upon consideration 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 DEJ program based upon an initial assessment undertaken by 

the prosecutor. Specifically, the relevant statutory provision states: “The prosecuting 

attorney shall review his or her file to determine 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 attorney shall file a declaration in writing with the court or 

state for the record the grounds upon which the determination is based, and shall make 

this information available to the minor and his or her attorney. Upon a finding that the 

minor is also suitable for deferred entry of judgment and would benefit from education, 

treatment, and rehabilitation efforts, the court may grant deferred entry of judgment. 

Under this procedure, the court may set the hearing for deferred entry of judgment at the 

initial appearance under Section 657. The court shall make findings on the record that a 

minor is appropriate for deferred entry of judgment pursuant to this article in any case 

where deferred entry of judgment is granted.” (§ 790, subd. (b).) In this case, these 

statutory requirements were not met. 

 Specifically, at the time the wardship petition was filed, the prosecutor 

properly submitted the mandatory “Determination of Eligibility” form. However, the 

prosecutor erroneously indicated minor was ineligible for DEJ, with the result that no 
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declaration of eligibility was made in court, 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 the 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 Juvenile Facilities; (4) minor’s juvenile record does not 

indicate that probation has ever been revoked without being completed; (5) minor is at 

least 14 years of age at the time of the hearing; and (6) minor is eligible for probation 

pursuant to Penal Code section 1203.06. 3 (§ 790, subd. (a)(1)-(6).) 

 Accordingly, in light of the prosecutor’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, and the dispositional order, 

 

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 “The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21, 

The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The 

sections provide that in lieu of jurisdictional 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 judgment is deferred. After the successful 

completion of a term of probation, on the motion of the prosecution 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 court proceeding are sealed. (§§ 791, subd. 

(a)(3), 793, subd. (c).)” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.) 

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 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 left unchecked the boxes relating to whether 

minor had been on, and successfully completed, probation, before ultimately 

identifying him as ineligible for DEJ. According to the People, this error may have 

been made because, although the record does not indicate minor’s probation status had 

previously been revoked (§ 790, subd. (a)(4)), it does indicate 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 violation but is not subject to probation revocation remains 

eligible for DEJ; however, whether the minor is suitable for DEJ is left to the court’s 

discretion].) 
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and remand the matter for further 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 related to the effectiveness of his assistance from counsel, 

that are raised in his direct appeal or related petition for habeas corpus. 

II. The Sustained Allegation of Conspiracy to Commit Attempted Burglary Must Be Reversed. 

 Minor and the People further agree that the juvenile court erred in sustaining the 

allegation that minor conspired to commit attempted burglary because “conspiring to 

merely attempt to commit 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] conspiracy consists of two or more persons conspiring to 

commit any crime. A conviction of conspiracy 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 conspiracy and attempted murder: “[T]he targeted crime of the 

conspiracy, attempted murder, requires a specific intent to actually commit the murder, 

while the agreement underlying the conspiracy pleaded to contemplated no more than an 

ineffectual act. No one can simultaneously intend to do and not do the same act, here the 

actual commission of a murder. This inconsistency in required 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 attempted burglary, like attempted murder, is a specific intent 

crime requiring intent to commit burglary and a direct 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.) 
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 Accordingly, we agree with the parties the juvenile court erred in sustaining the 

allegation that minor committed the nonexistent offense of conspiracy to commit 

attempted burglary. The sustained allegation should therefore be reversed. 

III. The Juvenile Court Erred by Failing to Indicate the Maximum Term of 

Minor’s Confinement. 

 Finally, minor contends, and the People agree, the juvenile court erred by failing 

to calculate and specify in the 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 placed. 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 guardian as the result of an order of wardship 

made pursuant to Section 602, the order shall specify that the minor may not be held in 

physical confinement for a period 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” includes “placement in a juvenile hall, ranch, camp, forestry 

camp or secure juvenile home pursuant to Section 730, or in any institution 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 Rehabilitation Facilities Camp Glenwood Program, a 

juvenile camp within the meaning of section 726, subdivision (d). However, in doing 

so, the juvenile court failed to discharge its mandatory duty under section 726, 

subdivision (d), to indicate, in the order or on the record, 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 should 
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determine minor’s placement in the camp, in lieu of DEJ, is the proper disposition in 

this matter, it must then determine and specify the maximum 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 remanded to the juvenile court for 

further proceedings consistent with the opinions reached herein. 

 _________________________ 

 Jenkins, J. 

We concur: 

_________________________ 

Pollak, Acting P. J. 

_________________________ 

Siggins, J.