California Court of Appeal Oct 20, 2014 No. D064889Unpublished
Filed 10/20/14 In re Erik B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ERIK B., a Person Coming Under the Juvenile Court Law. D064889 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. JCM234188)
v.
ERIK B.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Polly H.
Shamoon, Judge. Affirmed with directions.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr. and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent.
At the age of 16, defendant and appellant Erik B. came to the attention of a police
officer when his mother informed the officer she was having a lot of problems with him
and was concerned about his drug use. Erik's mother told the officer where Erik and his
friends usually spent their time together, and the officer found Erik with two of his
friends and spoke to them. During the course of the contact, the officer conducted a
search of Erik and found him in possession of both marijuana and cocaine. Erik was then
The trial court has the ultimate discretion to rule on the suitability of the minor for
DEJ after consideration of the factors specified in rule 5.800(d)(3) and section 791,
subdivision (b), and based upon the "'standard of whether the minor will derive benefit
2 All further references to rules are to the California Rules of Court 8
from "education, treatment, and rehabilitation" rather than a more restrictive
commitment. [Citations.]'" (Martha C., supra, 108 Cal.App.4th at p. 562, italics
omitted, quoting In re Sergio R. (2003) 106 Cal.App.4th 597, 607 (Sergio R.).)
"The court may grant DEJ to the minor summarily under appropriate
circumstances ([former] rule 1495(d) [now rule 5.800(d)]), and if not must conduct a
hearing at which 'the court shall consider the declaration of the prosecuting attorney, any
report and recommendations from the probation department, and any other relevant
material provided by the child or other interested parties.' ([Former] [r]ule 1495(f) [now
rule 5.800(f)], italics added.) While the court retains discretion to deny DEJ to an eligible
minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ
and furnish notice with the petition is mandatory, as is the duty of the juvenile court to
either summarily grant DEJ or examine the record, conduct a hearing, and make 'the final
determination regarding education, treatment, and rehabilitation . . . .' [Citations.] Use of
the mandatory language 'shall' indicates a legislative intent to impose a mandatory duty;
no discretion is granted. [Citation.] '"'"Shall" is mandatory, . . . "may" is permissive.'
[Citation.]" [Citations.]' [Citation.] The court is not required to ultimately grant DEJ,
but is required to at least follow specified procedures and exercise discretion to reach a
final determination once the mandatory threshold eligibility determination is made.
[Citation.]" (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).)
As here, the prosecuting attorney in Luis B. failed to consider whether a minor was
eligible for DEJ treatment and no DEJ hearing was ever conducted by the juvenile court.
This error required that the trial court's jurisdictional findings and dispositional orders be
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set aside but not vacated entirely. (Luis B., supra, 142 Cal.App.4th at p. 1123.) Rather,
in its order remanding the case to the trial court for a DEJ hearing the Court of Appeal
directed: "If, as a result of those proceedings, the juvenile court grants DEJ to defendant,
it shall issue an order vacating the findings and orders. If the juvenile court denies DEJ
to defendant, it shall make its order continuing in effect the judgment, subject to
defendant's right to have the denial of DEJ and the findings and orders reviewed on
appeal. [Citation.]" (Id. at pp. 1123-1124, fn. omitted.)
B. Analysis
Here, upon learning the prosecutor had failed to discharge his duty and consider
Erik's DEJ eligibility, the juvenile court provided Erik with the same relief the Court of
Appeal ordered in Luis B.: a DEJ hearing. The juvenile court's unwillingness to vacate its
earlier findings entirely, but instead to forego acting on those findings until it determined
whether DEJ was appropriate for Erik, in no manner prejudiced Erik. First, the juvenile
court's ruling on the DEJ request makes it clear the circumstances of the underlying
offenses had very little to do with its DEJ decision. As the juvenile court's ruling
indicates, it was far less concerned about the underyling offenses than Erik's behavior at
home, his mental health, and the level of support he needed. Secondly, nothing in section
790 et seq. prevents a court from considering the circumstances of the charged offense in
determining whether to order DEJ. (See § 791, subd. (b); rule 5.800(d)(3).) Indeed, in
Sergio R., supra, 106 Cal.App.4th at page 608, the court relied almost entirely on the
circumstances of the charged offenses in affirming the juvenile court's order denying
DEJ.
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In sum, the juvenile court acted properly in holding a DEJ hearing after being
advised about the prosecutor's failure to consider Erik's eligibility for DEJ. The juvenile
court was not required to vacate its earlier jurisdictional findings.
Contrary to Erik's contention, the juvenile court did not abuse its discretion in
denying him DEJ. As we have noted, the juvenile court was very concerned about Erik's
previous behavior, repeated abuse of drugs, level of violence and his mother's failed
attempts to stabilize him. Of obvious concern as well was Erik's failure, for over a year,
to attend school. Another area of concern was Erik's reported depression and his failure
to attend counseling. Given these circumstances, Erik was plainly not a candidate for the
more relaxed supervision a DEJ program provides. (See Sergio R., supra, 106
Cal.App.4th at p. 608.)
II
By way of a supplemental brief, Erik contends that under the holding in In re J.G.
(2014) 228 Cal.App.4th 402 (J.G.), he was unlawfully detained before he consented to be
searched and therefore his consent, as the fruit of an unlawful detention, was invalid. The
holding in J.G. is readily distinguishable.
A. Search of Erik
According to Officer Gil, after talking to Erik's mother about the problems she was
having with him, he drove to Erik's friend Rashad's house, where he found Erik, Rashad
and a third juvenile, Emmanuel. Gil called out to the boys as he got out of his police car,
and they started walking towards him. They met at some point in front of Gil's car, and
he asked them if they had anything illegal on them or if any of them was on probation.
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They all answered in the negative. Officer Gil then asked them to sit on the curb in front
of his car while he waited for a backup officer and ran warrant checks on the boys.
According to Officer Gil, he asked them to sit on the curb as a safety measure because he
was by himself and waiting for his cover unit. All three agreed to sit on the curb and
according to Officer Gil, "I even told them they were not under arrest." Officer Gil then
asked the boys if he could search them. All three consented to be searched and, during
the course of searching Erik, Officer Gil found the contraband that gave rise to the
petition alleging his delinquency. At some point during the contact, a backup officer
arrived on the scene; at the time of the hearing on Erik's motion to suppress, Officer Gil
could not recall whether the backup officer arrived before or after he asked for consent to
search Erik and his two companions.
Emmanuel testified at the hearing on the motion to suppress and stated that he felt
free to leave from the beginning of the contact and even when Officer Gil told the boys to
sit down: "Like it wasn't anything to be made of a big deal though. It was just like, oh,
like, what are you doing type . . . ."
Rashad and Erik testified that they did not feel free to leave and that Erik only
consented to be patted down by Officer Gil.
In denying the motion to suppress, the trial court found that, under the totality of
the circumstances, a reasonable person would have felt free to leave at the point in time
when Officer Gil asked for consent to search. In making that finding, the trial court
expressly found that Officer Gil's testimony and Emmanuel's testimony were more
credible than Rashad's or Erik's. The trial court also found that in fact Erik consented to
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be searched rather than simply patted down. Again, the trial court found that Officer Gil
was more credible and that in fact Erik consented to a search rather than a pat down.
B. Search in J.G.
In contrast to the search of Erik, in J.G. the parties agreed there were no
circumstances that supported any detention of the juvenile. Moreover, the juvenile was
confronted with a considerable level of force and intimidation at the time he was asked to
consent to a search. In J.G., the juvenile and his brother were approached by a police
officer, questioned about whether they had anything illegal on them, and then asked to sit
on a curb. While sitting on the curb, and backed up at that point by three other officers,
one of whom had displayed a weapon, the juvenile was asked whether the officer could
search his backpack. The juvenile consented. In finding that the juvenile and his brother
were unlawfully detained at the time they were asked to sit on the curb, and that the
juvenile's later consent was therefore invalid as the fruit of the unlawful detention, the
court relied to a significant extent on the officer's accusatory questions. (J.G., supra, 228
Cal.App.4th at p. 412.) Those questions are of course similar to the ones Officer Gil
asked in this case. However, the court also relied on the considerably higher level of
force deployed at the time consent was requested. (Ibid.) Importantly, the court noted
that at no time were J.G. and his brother told that they were free to leave: "[I]f Officer
Woelkers had told J.G. that he was free to decline to sit on the curb, any subsequent
acquiescence on J.G.'s part would have strongly suggested that he had not been detained."
(J.G., at p. 413, fn. 9.)
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C. Analysis
Although in some respects the record here is similar to the situation the court
considered in J.G., in material respects it is quite different. First, unlike the situation the
court confronted in J.G., here, there were articulable circumstances that supported
detention of Erik and his companions. Officer Gil had been informed by Erik's mother
that she was very concerned about him, about his companions, and his drug use. Shortly
thereafter, Officer Gil found the boys not in school during school hours. Both the report
of Erik's drug use and his absence from school during school hours supported detention
of the boys. (See In re Humberto O. (2000) 80 Cal.App.4th 237, 240-241 [minor under
the age of 18 found out of school during school hours may be detained to determine
truancy]; accord, In re James D. (1987) 43 Cal.3d 903, 917-918.).) Thus, even if the
boys were detained, the detention was not unlawful and would not therefore have tainted
their later consent to be searched.
In the alternative, we note the testimony of Emmanuel, who stated that the stop
was not a very big deal and that he believed he was free to leave. We also have Officer
Gil's statement to the boys that they were not under arrest. These circumstances—
Emmanuel's belief he was free to leave and Officer Gil's statement to the boys—take this
case well outside the holding in J.G. and fully support the trial court's determination that,
under the totality of the circumstances, the boys were not detained and again that Erik's
consent was therefore not the fruit of an unlawful detention.
In sum, because there was no unlawful detention, Erik's later consent to be
searched was valid.
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III
Erik argues that in calculating his maximum term of confinement, the trial court
failed to give him credit for time he spent in predisposition custody. Erik contends he
was in custody for a total of 41 days: from September 18, 2013 to October 2, 2013, and
then again from October 5, 2013 to October 30, 2013. The Attorney General agrees Erik
is entitled to 41 days of predisposition credits. Given these circumstances, we may direct
Erik be provided predisposition credits by way of a minute order. (See In re J.M. (2009)
170 Cal.App.4th 1253, 1257.)
DISPOSITION
The court is ordered to file a minute order reflecting that Erik B. is entitled to 41
days of predisposition credit. In all other respects, the judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court properly denied the minor's request for a deferred entry of judgment (DEJ) program after conducting a hearing, and that the minor's consent to search was valid because he was not unlawfully detained. The court further held that the minor was entitled to 41 days of predisposition custody credit.
Issues
Whether the juvenile court erred in denying the minor's request for a deferred entry of judgment (DEJ) program.
Whether the minor's consent to search was the product of an unlawful detention.
Whether the minor was entitled to credit for time spent in predisposition detention.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The trial court fully remedied that error by conducting a DEJ hearing, which showed that Erik was not a candidate for treatment under section 790.”
“In sum, because there was no unlawful detention, Erik's later consent to be searched was valid.”
“The court is ordered to file a minute order reflecting that Erik B. is entitled to 41 days of predisposition credit.”