Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 10JQ0069, George L. Orndoff, Judge.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., Kane, J.
PROCEEDINGS
On June 18, 2010, the Kings County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602 alleging that appellant, Alberto G., unlawfully carried a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). The district attorney also filed a Determination of Eligibility for Deferred Entry of Judgment (DEJ) indicating appellant was eligible for DEJ.
Unless otherwise designated, all statutory references are to the Welfare and Institutions Code.
On July 13, 2010, appellant admitted the allegation in the petition. The juvenile court, however, failed to find a factual basis for the admission and set the matter for a jurisdiction hearing. At the conclusion of a jurisdiction hearing on August 10, 2010, the juvenile court sustained the petition.
At the disposition hearing on September 16, 2010, the juvenile court found appellant to be a ward of the court, left appellant in his parents’ custody, and placed appellant on probation for three years upon various terms and conditions.
On appeal, appellant contends, and respondent concedes, the juvenile court abused its discretion by failing to consider appellant for DEJ. Appellant argues there was insufficient evidence that he carried a dirk or dagger. Appellant further challenges some of the terms and conditions of his probation, as well as the competency of his counsel for failing to challenge those conditions at the disposition hearing. Because we find merit in the first contention, we will reverse and remand for further proceedings.
Because appellant admitted the allegation and because the court failed to have a DEJ hearing, necessitating reversal, we do not recount the facts from the jurisdiction hearing.
DISCUSSION
Under the provisions of Welfare and Institutions Code section 790 et seq. a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment in lieu of jurisdictional and dispositional hearings. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the juvenile court is required to dismiss the charges. The arrest upon which judgment was deferred is then deemed never to have occurred, and any records of the juvenile court proceeding are sealed. (§§ 791 & 793; subd. (c); Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
The determination of whether to grant DEJ requires consideration of “two distinct essential elements of the [DEJ] program, ” viz. “eligibility” and “suitability.” (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) Once the threshold determination of eligibility is made, “The trial court... has the ultimate discretion to rule on the suitability of the minor for DEJ....” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).)
The eligibility requirements for DEJ are set forth in section 790, which provides that a minor is eligible for DEJ if he or she is accused in a juvenile wardship proceeding of committing a felony offense and all of the following circumstances apply: “(1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [¶] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. [¶] (3) The minor has not previously been committed to the custody of the Youth Authority. [¶] (4) The minor’s record does not indicate that probation has ever been revoked without being completed. [¶] (5) The minor is at least 14 years of age at the time of the hearing. [¶] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code.” (§ 790, subd. (a)(1)-(6).)
Suitability is within the court’s discretion, after it considers certain factors specified by statute and rule of court, and based upon the standard of whether the minor will derive benefit from education, treatment and rehabilitation rather than a more restrictive commitment. (Luis B., supra, 142 Cal.App.4th at p. 1123.)
It is the prosecuting attorney’s duty to assess a minor’s eligibility for DEJ: “The prosecuting attorney shall review his or her file to determine whether [the eligibility requirements set forth above] apply.” (§ 790, subd. (b).) California Rules of Court, rule 5.800(b) reiterates the prosecuting attorney’s duty, and specifies that the review must be performed “[b]efore filing a petition alleging a felony offense, or as soon as possible after filing....”
All rule references are to California Rules of Court.
Upon determining that a minor is 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 determination is based, and shall make this information available to the minor and his or her attorney.” (§ 790, subd. (b).) The form apparently designed for this purpose is form JV-750, Determination of Eligibility--Deferred Entry of Judgment--Juvenile (JV-750), the completion of which requires the prosecutor to indicate findings as to the eligibility requirements by checking, or not checking, corresponding boxes. (Rule 5.800(b).) Rule 5.800(b) directs the prosecutor to file JV-750 “with the petition.” In addition, the prosecutor’s “written notification to the minor” of the minor’s eligibility must include, inter alia “[a] full description of the procedures for deferred entry of judgment” (§ 791, subd. (a)(1)) and “[a] clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment” (§ 791, subd. (a)(3)).
The prosecutor failed to file a form JV-751 notifying appellant that he was eligible for DEJ.
The procedures for consideration of DEJ are as follows: Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review the child’s file to determine if the requirements for eligibility into the DEJ program have been met. (Rule 5.800, subd. (b)(1).) “If the prosecuting attorney’s review reveals that the requirements [of eligibility] have been met, the prosecuting attorney must file Determination of Eligibility--Deferred Entry of Judgment--Juvenile (form JV-750) with the petition.” (Ibid.) If the court determines the child is eligible and suitable for DEJ, and would derive benefit from education, treatment, and rehabilitation efforts, the court may grant DEJ. (Rule 5.800, subd. (b)(2).)
Section 791 further provides that where it is determined the minor is eligible for DEJ, “If the minor consents and waives his or her right to a speedy jurisdictional hearing, the court may refer the case to the probation department or the court may summarily grant deferred entry of judgment if the minor admits the charges in the petition and waives time for the pronouncement of judgment.” (§ 791, subd. (b).)
The DEJ statutes and rule 5.800 have much less to say with respect to procedures that apply when the prosecuting attorney determines the minor is ineligible for DEJ. The statutes relating to DEJ, sections 790 through 795, are silent with respect to determinations of ineligibility, and rule 5.800 contains a single sentence on the subject: “If it is determined that the child is ineligible for deferred entry of judgment, the prosecuting attorney must complete and provide to the court, the child, and the child’s attorney Determination of Eligibility--Deferred Entry of Judgment--Juvenile (form JV-750).” (Rule 5.800(e).)
The parties in the instant action agree that the prosecuting attorney filed, with the wardship petition, a JV-750 which stated that appellant was eligible for DEJ. Appellant and the People agree that the juvenile court erroneously failed to consider appellant’s suitability for DEJ. We agree with the parties.
Appellant was charged with a felony, and insofar as the record reveals, he meets each of the requirements set forth in section 790, subdivision (a)(1) through (a)(6). The People failed to attach form JV-751 notifying appellant he was eligible for DEJ, and therefore failed to follow DEJ procedures. Although the court set the matter over for a contested hearing concerning the factual basis for the allegation, appellant had already admitted the allegation, a prerequisite for DEJ. The court also failed to follow DEJ procedures.
Accordingly, we will remand the matter to allow the court to exercise its discretion to determine appellant’s suitability for DEJ. (In re Joshua S. (2011) 192 Cal.App.4th 670, 682.) We agree with respondent that consideration of DEJ logically precedes consideration of appellant’s remaining issues. We note that appellant is entitled to appeal from the juvenile court’s order should the court exercise its discretion to deny DEJ. (Luis B., supra, 142 Cal.App.4th at pp. 1123-1124.) Our determination not to reach the merits of appellant’s other contentions is made without prejudice to appellant raising these issues with the juvenile court should it deny DEJ and conduct further proceedings pursuant to that determination.
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are reversed. The matter is remanded to the juvenile court for exercise of its discretion to determine, in view of the requirements set forth in Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800, whether appellant should be granted deferred entry of judgment and to conduct any further proceedings as may be necessary after making that determination.