Filed 2/20/14 In re Johnny S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re JOHNNY S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,

v. JOHNNY S., Defendant and Appellant. F066572 (Super. Ct. No. 511830)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Stanislaus County. Shawn D. Bessey, Judge. Suzanne M. Morris, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorn eys General, for Plaintiff and Respondent.
-ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.2. Minor Johnny S. was found to have committed vehicle theft (Veh.Code, § 10851, subd. (a); count 1) and evas ion of a peace officer (Veh .Code, § 2800.2, subd. (a); count 2). The juvenile court placed him on formal probation subject to certain terms and conditions. He appealed. 1 We reversed and remanded for the juvenile court to provide notice to Johnny S.’s motherregarding his eligibility fo r deferred entry of judgment (DEJ) and to consider his suitability for DE J. The court found him unsuitable. He appeals again, contending the juvenile court again failed to notify his mother as required by statute and abused its discretion when it fo und him unsuitable for DEJ. We conclude the failure to notify was harm less, and we find no abuse of discretion in the finding of unsuitability. Accordingly, we will a ffirm the juvenile court’s orders. FACTS On the evening of June 3, 2011, Adri ana Perez loaned he r 1997 Nissan Quest minivan to her boyfriend, Peter Ayarza. Ayarza drove the minivan to La Huaraca nightclub, where he worked, and parked it in the club’s parking lot. Ayarza thought he left the keys in the unlocked minivan.
Around 2:00 a.m. on June 4, 2011, Ayarza finished wo rk, went into the parking lot, and discovered the minivan was missing. Ayarza asked the nightclub’s security guard about the minivan. The security guar d said he noticed someone driving away in the minivan and just assumed that Ayarza’s gi rlfriend had picked it up. Ayarza called the police. He also called Perez and arranged for a mutual friend to driv e her to the nightclub to pick him up. Ayarza and Perez met an o fficer at the nightclub to report the stolen
minivan.

1 We take judicial notice of the record and opinion in case No. F063499. (Evid. Code, §§ 452, 459.)3. After making the report, Ayarza and Per ez headed home in their friend’s car. As Ayarza drove home, they saw the stolen mini van pull out of the driveway of another nightclub and stop at an intersection. They were about 10 mi nutes away from the
location where the minivan had been stolen. Perez and Ayarza saw two people sitting in the minivan’s front seat. They described the driver as chubby with short hair, and the passenger as thinner and taller. Ayarza turned his friend’s car around and fo llowed the minivan. Perez called the police and described the minivan’s location. The minivan accelerated and tried to evade Ayarza. Stanislaus County Sheriff’s Deputy Moreno was already in the area responding to another dispatch, when he saw Ayarza follo wing the speeding minivan. The speeding minivan approached Moreno and the woman to whom he was speaking. Seeing that the minivan was heading right at them and not slowing down, he shouted at the woman and she stopped herself as the minivan sped past her. Moreno made sure she was okay, then he activated his patrol car’s siren and lights, pursued th e minivan, and attempted to conduct a traffic stop. The minivan failed to stop, Moreno followed the minivan, and Ayarza followed Moreno. As the pursuit continued, the minivan traveled over 55 miles per hour. The minivan went through a stop si gn, lost control at a corne r, swerved on and off the road, and drove across the front yard of a residence. The minivan turned into an alley, crashed into a fence and building, and finally stopped. 2 Two people ran out of the minivan’s passenger door. Deputy Moreno apprehended Johnny S. in the area. Moreno asked Ayarza to look at Johnny S. while seated in his patrol ca r. Ayarza immediately id entified Johnny S. as

2 According to the probation report, the minivan was so damaged that it could not be driven and had to be towed fro m the area for extensive repairs.4. the minivan’s driver. Perez and Ayarza also identified the minivan as their stolen vehicle. The keys were never recovered. At trial, both Perez and Ayarza identified Johnny S. as the minivan’s driver based on their observations when they saw the stolen minivan pulling out of the other nightclub parking lot and traveling on the street. Defense Evidence Johnny S. admitted he was in the stolen minivan, but he insisted he never drove it and did not know it was stolen until just befo re it crashed. He testified that a friend picked him up in the minivan around 11:00 p.m. They drove around and went to another
friend’s house. His friend started the miniva n with a set of keys and drove the minivan the entire time Johnny S. was in the vehicle. As the friend was driving Johnny S. home, the deputy tried to conduct the traffic stop. His friend refused to stop and told Johnny S.
that the minivan was stolen. After the miniva n crashed, Johnny S. ran away because he did not want to get caught. Johnny S. refuse d to identify the person who was driving the
minivan. DISCUSSION
I. DEJ The DEJ provisions of Welfare and In stitutions Code section 790 et seq. 3 “provide that in lieu of jurisdictional and dispositional hearings, a mi nor 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 suc cessful completion of a term of probation, on the motion of the prosecuti on and with a positive reco mmendation from the probation department, the court is required to dismiss th e charges. The arrest upon which judgment
was deferred is deemed never to have occurr ed, and any records of the juvenile court

3 All further statutory citations are to the Welfare and Institutions Code unless otherwise noted.5. proceedings are sealed. [Citations.]” ( Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C. ).) The determination of whether to grant DE J requires consideration of “two distinct essential elements of the [DEJ] progr am”—“eligibility” and “suitability.” ( In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10, italics omitted ( Sergio R. ).) “Under section 790, the prosecuting attorney is re quired to determine whether the minor is eligible for DEJ. Upon determining that a minoris eligible for DEJ, the prosecuting attorney ‘shall file a declaration in writing with the court or state for the record the grounds upon which the determina tion is based, and shall make this information available to the minor and his or her attorney.’ (§ 790, subd. (b).) The fo rm designed for this purpose is a [Determination of Eligibility—Deferred Entry of Judgment—Juvenile] form JV-750, the completion of which requires the pr osecutor to indicate findings as to the eligibility requirements by checking, or not ch ecking, corresponding boxes. (Cal. Rules of Court, rule 5.800(b).) If a minor is f ound eligible for DEJ, form JV-751, entitled
‘Citation and Written Notification for Deferred Entry of Judgment—Juvenile,’ is used to notify the minor and his or her parent or guardia n. There is a box to check on the JV-750 form indicating that the JV-7 51 form is attached.” ( In re C.W. (2012) 208 Cal.App.4th 654, 659 ( C.W. ), italics added.) 4 “The court must issue C itation and Written Notification for Deferred Entry of Judgment—Juvenile (form JV-751) to the child’s custodial parent, guardian, or foster parent. The form must be personally served on the custodial adult at
least 24 hours before the time set for the a ppearance hearing.” (Rule 5.800(c), italics omitted.) “In addition, the prosecutor’s ‘written no tification to the minor’ of the minor’s eligibility must include, inte r alia, ‘[a] full description of the procedures for deferred

4 All further citations to rules are to th e California Rules of Court, unless otherwise noted.6. entry of judgment’ (§ 791, subd. (a)(1)) a nd ‘[a] clear statemen t that, in lieu of jurisdictional and disposition hearings, the co urt may grant a deferred entry of judgment with respect to any offense charged in the petiti on, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment’ (§ 791, subd. (a)(3)).” ( C.W., supra, 208 Cal.App.4th at p. 660.)
“Once the threshold determin ation of eligibility is made, the juvenile trial court
has the ultimate discretion to rule on the minor’s suitability for DEJ. [Citation.] Suitability for DEJ is within the court’s discretion afte r consideration of the factors specified by statute and rule of court, and based upon the standard of whether the minor will derive benefit from ‘“‘“education, treatm ent and rehabilitation”’”’ rather than a more restrictive commitment. [Citation.]” ( C.W., supra, 208 Cal.App.4th at p. 660, italics added.) “[T]he statutory language empowers but does not compel the juvenile court to grant” DEJ. ( Sergio R., supra, 106 Cal.App.4th at p. 605.) “While such eligibility is a necessary condition for DEJ, it is not al one a sufficient basis. Under proper circumstances the court may refuse DEJ even to minors eligible under section 790, subdivision (a). [Citation.]” ( Martha C., supra, 108 Cal.App.4th at p. 560.) If the prosecuting attorney finds th e minor eligible, the court ha s a “mandatory ... duty ... to either summarily grant DEJ or examine the record, conduct a hearing, and make ‘the final determination regarding education, treatme nt, and rehabilitation ... .’ [Citations.]” ( In re
Luis B. (2006) 142 Cal.App.4th 1117 , 1123.) Thereafter “the court retains discretion to deny DEJ to an eligible minor ....” ( Ibid. ) “The court is not required to ultimately grant DEJ, but is required to at le ast follow specified procedures and exercise discretion to
reach a final determination once the mandato ry threshold eligibility determination is made. [Citation.]” ( Ibid. ) Thus, the fact that the minor meets the statutory criteria for eligibility does not
mean the minor is automatica lly entitled to DEJ. Rather, a grant of DEJ is a matter addressed to the discretion of the juvenile court. ( Sergio R., supra, 106 Cal.App.4th at7. pp. 604-605, 607.) The juven ile court must determine whether the minor is suitable for DEJ, taking into account the minor’s age, maturity, edu cational background, family relationships, demonstrable motivation, tr eatment history, and other mitigating and aggravating factors. (§ 791, subd. (b); see rule 5.800(d) [if probation report is ordered, it must address these factors and any other rele vant factors regarding the benefit the child would derive from education, treatment, a nd rehabilitation efforts and programs best
suited to assist the child and the child’s family].) Although the probation department repor ts its findings and recommendations to the court, the court is not bound by these recommendations an d is charged with making the final independent determ ination of suitability. ( Martha C., supra, 108 Cal.App.4th at p. 561; In re Robert H. (2002) 96 Cal.App.4t h 1317, 1329.) Denial of DEJ is proper “only when the trial court finds the minor would not benefit from education, treatment and rehabilitation.” ( Martha C., supra, at p. 561.) In making such a determination, the court may find that the circumstances of a cr ime indicate a minor is not amenable to rehabilitation. ( Id. at p. 562.) We may reverse the juvenile court’s dete rmination only upon a showing of abuse of discretion. ( Sergio R., supra, 106 Cal.App.4th at p. 607; In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330.) An abuse of discretion occurs only when the trial court “‘exceeds the bounds of reason, all of the ci rcumstances before it being considered.’” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) II. Procedural Background According to the record on appeal (after our remand), on November 21, 2012, Johnny S. signed a promise to appear at a hearing on December 21, 2012. The form states that Johnny S. was released to his mo ther. Printed on the bottom of the form are instructions that the original of the form goes to the court and that copies go to the minor, the parent, and the pr obation department.8. On December 21, 2012 , the juvenile court held a he aring to discuss the remand of the case for DEJ consideration. Johnny S. wa s present, but there is no indication in the
record that his mo ther was present. 5 The court requested that the probation department prepare a DEJ suitability report. On December 28, 2012, the probation de partment filed a DEJ suitability report
based on information available at the time the June 7, 2011 petition was filed. The report found Johnny S. unsuitab le for DEJ based on the nature of the crimes, his grades, his expulsion for fighting, his suspension for excessi ve tardiness, and his use of marijuana. The report also noted th at Johnny S.’s mother stated that Johnny S. needed to serve his time in juvenile hall if he was fou nd to be responsible for the crimes. On January 10, 2013, the j uvenile court held a DEJ suita bility hearing. Johnny S. and his mother were present. The parties ar gued Johnny S.’s suitability before the court.
The court considered the DE J suitability report and took the matter under submission. On January 17, 2013, Johnny S. and his mother returned for the review hearing.
The court addressed the circumstances of the crimes, noting that the incident occurred in the early morning, Johnny S. was the driver of the stolen minivan, he almost hit a pedestrian, he led the police on a chase with li ghts and sirens, and he drove recklessly at a high speed through stop signs and stop lights, eventually crashing to a stop. The court explained that these facts show ed an indifference toward the safety of his passenger, the police, and the general public. After the cr ash, Johnny S.’s flight from the officers showed a disregard for their commands and attempts to cont act him. The court also considered Johnny S.’s inta ke statement that he had so me issues at school, smoked marijuana, had a bad a ttitude at home, and was not following his mother’s directives.

5 The minute order does not show a check ed box for mother’s presence, but it also does not show a checked box for Johnny S.’s presence and the transcript establishes he was there. The minute orders for the he arings on January 10, 2013, and January 17, 2013, show checked boxes for both mother and Johnny S.9. The mother was aware of his marijuana use and poor grades, and felt he needed time in juvenile hall. The court concluded Johnny S. was not suitable for DEJ, and would benefit from the higher level of supervis ion provided by formal probation. II. Notification of Johnny S.’s Mother Johnny S. argues that the failure to notify his mother as required by statute was
reversible error. We conclude it was harmless. In our prior opinion, we found no eviden ce that Johnny S.’s mother, as his custodial parent, received notice of his DEJ e ligibility, either by personal service of forms JV-750 and JV-751, or during any of the juven ile proceedings in this case. The mother was present at all the hearings, but there was no mention of DEJ at those hearings. We agreed with the analysis in C.W. , supra, 208 Cal.App.4th 654, where the court stated: “[W]e do not have a completely sile nt record. Rather, th e record affirmatively reflects that the prosecuting attorney did no t check the box indicati ng that a citation and notification regarding DEJ (fo rm JV-751) was attached. Moreover, no form JV-751 appears in the record, nor is there any evidence that the juve nile court served C.W. and her parent or guardian with such a form, as required by ... rule 5.800(c). Likewise, DEJ was never mentioned at any of the hearings. In our vi ew, the existence of these omissions, in the context of an otherwise co mplete record, is su fficient to rebut the presumption that C.W. was properly advi sed of her DEJ elig ibility either by the prosecutor or by the juvenile court. [Citation.]” ( C.W., supra , at pp. 660-661.) Accordingly, we remanded for the cour t not only to consider Johnny S.’s suitability, but also to provide notice to Johnny S.’s mother. The record suggests, however, that after remand no fo rmal statutory notice was give n to Johnny S.’s mother, despite our instructions. The record co ntains no JV-751 form, which would have
informed the mother that Joh nny S. was eligible to be co nsidered for DEJ, ordered the mother to appear at a certain place and time for a hearing to consider whether to grant DEJ, and notified her that she may be required to participate in a program with Johnny S.10. The form also would have explained some of the details of DEJ, factors the court would consider, and possible conditions of probation. The form s hould have been served on the
mother at least 24 hours before the DEJ suitability hearing. Inexplicably, that failed to happen again. Nevertheless, we are convinc ed the error was harmless. Even if the mother had been properly no tified of the DEJ suitability he aring, the outcome of the hearing would not have be en different. First, we note th at under these facts, it is likely
the mother had actual notice that Johnny S. was elig ible for DEJ, assuming she received a copy of the form signed by Joh nny S. But whether she did or not, she was present at the two hearings in January 2013 in which the juvenile cour t considered and discussed Johnny S.’s suitability. Furthe rmore, the information consid ered by the court was limited
to information that was ava ilable at the time of the June 7, 2011 petition. This information, including the mother’s input, ha d already been collected and any new facts
or events were irrelevant. Under these circ umstances, we conclude the failure to comply with the specific requirements of statutor y notice was harmless beyond a reasonable doubt. ( In re James F. (2008) 42 Cal.4th. 901, 915 [harml ess error analysis appropriate because, unlike structural error, prejudice coul d be determined without “‘a speculative inquiry into what might have occurred in an alternate universe’”]; id. at p. 918 [“If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and revers al is not required.”]; see also In re A.D. (2011) 196 Cal.App.4th 1319, 1326-1327.) III. Suitability for DEJ Johnny S. contends the juvenile cour t abused its discretion when it found him unsuitable for DEJ because the court’s findings did not establish that he would not benefit from treatment, education, or rehabilitation. We disagree. The juvenile court properly considered the facts of John ny S.’s crimes, his behavior at school and home, his marijuana use, and his mother’s opinion. Johnny S.’s vehicle theft was a reckless and dangerous cr ime by virtue of the high-speed chase he11. instigated. He nearly hit a pedestrian as he sped past her. At school, he had been expelled for fighting and suspended for tardin ess, and his grades were poor. His own
mother felt he need ed to be incarcerated. These factors were all relevant to whether he
could benefit from the educatio n, treatment, or rehabilita tion of the DEJ program or
instead needed a more restri ctive program. The court expressly found that DEJ would not provide the supervision Johnny S. needed, which he could get from formal probation.
Even if we discount the factors about his n oncompliant behavior at home as too remote, as Johnny S. urges, we still conclude the cour t’s decision to deny DEJ did not fall outside
the bounds of reason. We fi nd no abuse of discretion. DISPOSITION The juvenile court’s orders are affirmed.