Metropolitan News-Enterprise


Thursday, July 27, 2006


Page 1


Court Holds Judge Not Estopped From Vacating Order Placing Minor in Deferred Judgment Program


By a MetNews Staff Writer


A court is not estopped from vacating an order placing a minor in Proposition 21’s deferred entry of judgment program pursuant to a plea bargain where the minor did not meet the program’s age requirement, this district’s Court of Appeal ruled yesterday.

Div. Four affirmed Los Angeles Superior Court Judge Tammy Chung Ryu’s order vacating a court referee’s order placing the defendant, referred to in the opinion only as V.B., in a deferred entry of judgment program.

When V.B. was 11 years old, he was arrested for attempting to rob a middle high school classmate at school and again on the way home from school, the record showed. He was charged in a delinquency proceeding with attempted second degree robbery and grand theft from the person.

The parties entered into a plea agreement in May 2004 wherein V.B. pled guilty to grand theft, the robbery count was dismissed, and V.B. was placed into Proposition 21’s deferred entry of judgment program.

Proposition 21, approved by California voters in 2001, allows minors at least 14 years old who are accused of certain offenses to be admitted into a deferred entry of judgment program. Under the program, the minor admits the charges against him but judgment is deferred.

    If the minor successfully completes a term of probation, on the motion of the prosecution, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and all the records are sealed.

At a May 2005 hearing, Ryu, who was not the one who accepted the plea bargain, noticed that V.B. was only 11, and therefore ineligible, when the court ordered him placed into the program.

Ryu offered V.B. the options of withdrawing the plea and starting over, or leaving

him in home-on-probation status with his grandmother until he completed his community service obligation, thereafter placing him home on probation without a declaration of wardship. Once he completed all conditions of probation the court would terminate jurisdiction and consider dismissing the petition.

Ryu noted that this was what would have happened under the Proposition 21 program.

V.B.’s attorney argued that under the program, V.B.’s record would have been automatically sealed upon completion of the program, but if he were out of the program, he would have to wait until turning 18 to seek a sealing order.

Conceding that V.B. would have to wait until he turned 18 to seal his records if the order were vacated, Ryu nonetheless held that the statutory requirements had to be complied with and vacated the court’s earlier order placing V.B. into the program.

By the time of the next hearing, V.B. had completed all the conditions of probation, and the court ordered him home on probation and terminated jurisdiction over the case.

On appeal V. B. argued that, since a criminal defendant who enters into a plea bargain is estopped from changing the terms of the bargain later on, the court should likewise be estopped from doing so.

Justice Norman L. Epstein, writing for Court of Appeal, explained:

“Appellant argues, in essence, that what’s sauce for the goose should be good for him as well: all parties to the plea bargain should be estopped from arguing an infirmity based on a judicial act in excess of jurisdiction, so long as the court had fundamental jurisdiction.”

But Epstein said that an order in excess of the court’s jurisdiction cannot be allowed to stand.

“Were it otherwise, any number of valid legislative restrictions on plea bargains and programs could be gainsaid by an agreed-upon resolution that is in blatant violation of law, or by a wink and a nod,” he said. “Neither is proper conduct for a bench officer, and the trial judge in this case acted with full propriety in vacating the illegal order.”

Justices Nora M. Manella and Steven C. Suzukawa concurred in the opinion.

The case is In re V. B., B183851.


Copyright 2006, Metropolitan News Company