Filed 12/13/13 In re Blake W. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re BLAKE W., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

 Plaintiff and Respondent,

v.

BLAKE W.,

 Defendant and Appellant.

 G048127

 (Super. Ct. No. DL043630)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Gregory 

W. Jones, Judge. Affirmed. 

Sylvia Whatley Beckham, 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, Meagan J. Beale and 

William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
2

In this juvenile court proceeding, appellant was placed on probation for 

committing burglary and possessing a controlled substance without a prescription. He 

contends the court erred in denying his request for deferred entry of judgment and failing 

to apply Penal Code section 654 in calculating his maximum period of confinement. We 

reject these contentions and affirm the judgment. 

FACTS AND PROCEDURAL BACKGROUND

On September 6, 2012, appellant was among a group of teens drinking 

alcohol and smoking marijuana in the backyard of Janel M’s house. Janel was not home 

at the time, but her son, who is developmentally disabled, was with the group. At some 

point, appellant and his friend David snuck into Janel’s house and began looking for 

objects to steal. Among other things, they made off with a gold watch, video game 

equipment, a lockbox full of old medicine and two bottles of medication that were 

currently prescribed to Janel’s husband, Ultram and Vicodin. 

Later that day, the police questioned appellant about the incident, and he 

denied stealing anything from Janel’s home. However, when David was interviewed, he 

admitted he and appellant took a variety of items from the house. Explaining their m.o., 

David said he distracted and kept an eye on Janel’s mentally challenged son, while 

appellant rummaged through the house looking for things to steal. 

The next day, the police were called to the home of one of appellant’s 

friends in regard to an unrelated theft. When the officers arrived there, appellant was 

sitting next to a “glass marijuana bong” that he admitted owning. Appellant was also in 

possession of a burnt straw and five Ultram pills. When asked about the pills, appellant 

said he bought them that day from a friend with money he had stolen from his parents. 

He admitted he used drugs every day, and, although his preference was for prescription 

drugs, he used heroin if they were not available. The police arrested appellant and 

released him to his father.
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The district attorney filed two separate petitions to declare appellant a ward 

of the juvenile court. (Welf. & Inst. Code, § 602.)1 The first petition alleged appellant 

committed first degree burglary by entering Janel’s house with the intent to steal (Pen. 

Code, §§ 459, 460, subd. (a)), and the second accused appellant of possessing a 

controlled substance without a prescription, which is a misdemeanor (Bus. & Prof. Code, 

§ 4060). At the time the petitions were filed, in the fall of 2012, appellant had just turned 

17 years old. 

In January 2013, the district attorney notified the juvenile court appellant 

was eligible for the deferred entry of judgment program (DEJ), given that, inter alia, his 

alleged crimes were relatively minor and he had never been declared a ward of the court

for a felony offense. (§ 790, subd. (a).) DEJ is akin to probation, except the supervision 

is generally less stringent, and if the minor completes the program, his charges will be 

dismissed and his arrest will be treated as if it never happened. (§§ 791, subd. (b), 793, 

subd. (c).) Although there is no dispute appellant was eligible for DEJ, eligibility is only 

the first prerequisite for admission into the program. A second – and necessary –

condition is that the minor be found to be suitable for the program. (§ 791, subd. (b).) 

To assist the court in making this determination, the probation department 

interviewed appellant and prepared a report on his suitability for DEJ. The interview 

took place on February 20, 2013, five and a half months after the alleged offenses. 

Appellant said he entered drug treatment the day after his arrest and had been clean and 

sober for 62 days. Under his current treatment program, he is required to participate in

family, peer and individual counseling and attend Alcoholics and Narcotics Anonymous 

meetings. While admitting he used to be a “complete mess” and stole anything he could 

to support his drug habit, appellant said he felt confident in his sobriety and his ability to 

succeed in the DEJ program. He also said he had changed his circle of friends and 

 

1 Unless noted otherwise, all further statutory references are to the Welfare and Institutions Code.
4

improved his relationship with his parents, both of whom are recovering alcoholics. 

Speaking to his future aspirations, appellant said he wants to complete high school and go 

on to community college. 

The probation officer felt appellant was a suitable candidate for DEJ, given 

his progress in drug treatment. However, the trial judge rejected the probation officer’s 

recommendation to place appellant in the DEJ program. At a hearing on the issue, the 

judge said he was concerned about the fact there were two separate petitions filed against 

appellant, and it appeared the burglary offense involved “planning, premeditation and 

conspiratorial activity[.]” However, the most troubling aspect of the case for the judge 

was what he described as appellant’s “significant substance abuse history,” which 

included not only the use of marijuana and prescription drugs, but heroin, as well. 

While commending appellant for his progress in drug treatment thus far, the 

judge stated, “It has been my experience, from [being] involved in the criminal law . . . 

for countless years, that drug problems are not resolved in three . . . six . . . nine . . . or 

[twelve] months. I think [appellant] is going to need to be supervised and . . . have 

basically the assistance that comes from intensive supervision to deal with these issues in 

the future.” 

The judge told appellant, “Generally, the easiest part about dealing with 

substance abuse is when you are in the program. The hard part comes when you get out 

of [the] program because . . . what you’re going to find happening [then] is all of your . . . 

old drug buddies . . . are going to be making contact with you . . . and . . . wanting to get 

high with you. They are going to want to be going out and get in trouble with you. 

When you’re out of the program, when you don’t have the rigid structure that program 

provides, those temptations are going to be real hard to resist. [¶] More people, I think, 

or perhaps an equal number of people fail and start using drugs again once they get out of 
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the program, as people fail who are actually in the program. So that is the reason why I 

think that you need the supervision that regular wardship would provide.” 

Instead of placing appellant in the DEJ program, the court declared 

appellant a ward of the court and placed him on formal probation after he admitted the 

allegations against him. As a condition of probation, the court ordered appellant to spend 

60 days in juvenile hall. However, the court stated it would suspend imposition of the 

60-day term as long as appellant continued to do well in drug treatment. The court also 

told appellant he could withdraw his plea admissions in one year, on March 4, 2014, if he

complied with the terms of his probation. The court felt this disposition would best serve 

the rehabilitative purpose of the juvenile justice system by helping appellant turn his life 

around. 

I

Appellant contends the trial court erred in refusing to place him in the DEJ

program. We disagree. 

When, as here, “the juvenile court denies a request for DEJ where the minor 

is statutorily eligible, we review the decision under the abuse of discretion standard. 

[Citation.]” (In re Damian M. (2010) 185 Cal.App.4th 1, 5.) Under that standard, we 

afford “considerable deference to the trial court provided [it] acted in accordance with the 

governing rules of law. We presume that the court properly applied the law and acted 

within its discretion unless the appellant affirmatively shows otherwise. [Citations.]” 

(Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.) And we will not disturb 

the court’s decision unless it “exceeds the bounds of reason and results in a miscarriage 

of justice. [Citations.]” (Ibid.) 

As explained above, once a minor is eligible for DEJ, the juvenile court 

must assess whether he is suitable for that program. Suitability turns on whether the 

minor would benefit from the less restrictive monitoring that comes with DEJ. (In re 
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Damian M., supra, 185 Cal.App.4th at p. 5.) In making this determination, the court 

must consider the minor’s education, treatment and rehabilitation needs, as well as any 

other relevant factors. (§ 791, subd. (b); Cal. Rules of Court, rule 5.800(d)(3).) While 

the probation department may be called upon to submit a recommendation on the issue, 

“the juvenile trial court has the ultimate discretion to rule on the minor’s suitability for 

DEJ. [Citation.]” (In re C.W. (2012) 208 Cal.App.4th 654, 660.) 

In assessing appellant’s suitability for DEJ, one of the factors the juvenile 

court considered was that the district attorney had filed two petitions against him, one for 

each of his alleged crimes. However, because the crimes occurred a day apart, it appears 

they could easily have been charged in a single petition. Therefore, we do not place great 

weight on this aspect of the court’s analysis. 

However, we do agree with the juvenile court that appellant’s alleged 

burglary offense evidenced planning and sophistication, which is a legitimate factor in 

deciding whether he would more likely benefit from formal probation than DEJ. (In re 

Damian M., supra, 185 Cal.App.4th at p. 5.) Indeed, the record shows appellant and his 

friend worked in cahoots to distract Janel’s developmentally disabled son so they could 

pilfer as much prescription medicine and as many other valuables they could get away 

with. Based on this, the juvenile court could reasonably conclude appellant might be less 

amenable to rehabilitation than other juvenile offenders. (Ibid.) 

Of course, the primary consideration informing the juvenile court’s ruling 

was appellant’s history of drug abuse. The facts reveal appellant was drinking alcohol 

and smoking marijuana before he and his friend decided to burglarize Janel’s residence. 

And the following day, he was found in possession of prescription drugs and a 

“marijuana bong.” Appellant told the police he stole money from his parents to buy the 

drugs, and he “smoke[s] . . . prescription drugs daily” when he has them. He also 

admitted he used heroin when he can’t get his hands on any prescription drugs. And we 
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note that while he had been in drug programs for five-and-a-half months, he only claimed 

62 days of sobriety. This is obviously an obstinate problem. Thus, it is abundantly clear 

appellant had a severe drug habit, and his drug use was leading to other problems.

This fact was not lost on the trial judge. Based on his extensive experience 

in dealing with juvenile drug offenders – and a prior career as an outstanding criminal 

defense attorney – the judge was aware of, and spoke directly to, the difficulties and 

temptations appellant would face along the road to rehabilitation. The judge’s comments 

indicate he carefully weighed his options, as well as the particular circumstances 

presented, in deciding on what he believed to the most appropriate disposition for 

appellant’s case. Although reasonable minds could differ on that issue, we cannot say the 

court’s decision to deny appellant’s request for DEJ was unreasonable or amounted to a 

miscarriage of justice. Indeed, it reflects an admirable willingness to apply original 

thinking and innovation to the probation department’s report. Therefore, we find no 

abuse of discretion and uphold the court’s decision to place appellant on probation. 

II

After placing appellant on probation, the court turned to the task of

determining the maximum term of confinement appellant would face if he failed to 

comply with the terms and conditions of his probation. (§ 726, subd. (d).) The court 

calculated that term as six years for the burglary, plus two months for the misdemeanor 

drug offense. Appellant contends the court should have stayed sentence on the drug 

count in light of Penal Code section 654, but we find no reason to disturb the court’s 

ruling. 

Penal Code section 654 generally prohibits multiple punishment when the 

defendant is convicted of both burglary and possessing the same items that were taken in 

the burglary. (People v. Jaramillo (1976) 16 Cal.3d 752; People v. Landis (1996) 51 

Cal.App.4th 1247.) Appellant argues that prohibition applies here because the 
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prescription pills he was charged with possessing were the same prescription pills he 

stole the day before during the burglary. 

In so arguing, appellant admits this was a question of fact for the trial 

judge, and that by imposing separate sentences, the judge impliedly determined the 

prescription pills found in his possession were not the same ones he took from Janel’s 

home the day before. (See People v. Gaio (2000) 81 Cal.App.4th 919, 935.) We review 

this ruling under the substantial evidence test, and in deciding whether substantial 

evidence exists to support it, we “consider the evidence in the light most favorable to 

respondent and presume the existence of every fact the trier could reasonably deduce 

from the evidence.” (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

As to the source of the Ultram pills found in his possession, appellant 

points out the pills he stole from Janel’s residence the previous day included a bottle of 

Ultram. According to appellant, this shows the pills were the same. However, when 

questioned about the pills found in his possession the day after the burglary, appellant

told police he had purchased them from a friend that very day with money he had stolen 

from his parents. Either appellant was lying or the pills were the same. 

Appellant contends his statement about how he acquired the pills was not 

credible in light of the fact he lied to the police about not being involved in the burglary. 

But considering appellant’s statement about the pills was self-incriminating, the juvenile 

court could reasonably conclude it was true and that separate sentencing was therefore 

justified on the drug count. (See generally People v. Spriggs (1964) 60 Cal.2d 868, 874 

[“a person’s interest against being criminally implicated gives reasonable assurance of 

the veracity of his statement made against that interest”].) Suffice it to say, substantial 

evidence supports the juvenile court’s decision to impose a two-month term on the drug 

count in calculating appellant’s maximum term of confinement. We discern no reason to 

disturb that decision on appeal. 
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DISPOSITION

The judgment is affirmed. 

BEDSWORTH, ACTING P. J. 

WE CONCUR:

FYBEL, J.

IKOLA, J.