People v. Edy D.

Opinion

CURRY, J.

Edy D. appeals from a judgment entered declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 upon a finding that he had committed petty theft, a misdemeanor, in violation of Penal Code section 484, subdivision (a). Placed home on probation, he contends the trial court violated his right to due process in failing to consider a disposition pursuant to Welfare and Institutions Code section 725, subdivision (a), as punishment for exercising his right to adjudication. For reasons explained in the opinion, we reverse the disposition order.

FACTUAL AND PROCEDURAL SUMMARY

Immediately prior to adjudication, the minor moved pursuant to Code of Civil Procedure section 170.1 to disqualify the judge for trial purposes. Defense counsel explained that while the trial court believed the motion was untimely, the problem was that when the parties last came to court and tried

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to discuss disposition, the court advised that “the 725

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disposition was off the table because [defense counsel] was setting it for trial.” Defense counsel argued the court could not be fair in terms of disposition when the court had already decided appellant should not receive a 725, subdivision (a) disposition just because the matter was set for trial.

In response, the court stated the matter had been set for pre plea and it was the court’s “understanding discussions were had and the minor rejected 725(a). If he rejected it, [the court is] not going to allow [the minor] to take advantage of 725(a) when witnesses are inconvenienced and brought to court. [The court] did say that 725(a) was off the table. [The court doesn’t] see anything wrong with that. It was offered to him, and he rejected it.”

At the adjudication hearing, Domingo Gomez testified he was employed in loss prevention at Tower Records in Marina Del Rey. On October 29, 2002, he was operating a camera from an observation point and observed the minor peeling the security tags from CD’s. Gomez left the camera on the minor to see what he was going to do with the CD’s and observed the minor conceal two of them in his front waistband. The minor then walked to the front of the store, grabbed his backpack, and exited the store. He passed “personed registers” on his way out but made no attempt to pay for the CD’s. Alarms went off, as the CD’s have “back-up tags.” Gomez detained the minor outside of the store. Gomez identified himself, stated for whom he worked, and placed the minor under arrest. Gomez subsequently turned the minor over to the police. The total value of the items was $41.98.