Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Cornell, Acting P.J., Gomes, J. and Hill, J.
APPEAL from a judgment of the Superior Court of Tuolumne County No. JV6302, Eric L. Dutemple, Judge.
Neil D. Chhabra, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
On October 17, 2006, appellant, Kayla R., and another juvenile used a rock to break a second story window and enter the home of Amber Pollock. Although nothing was taken from the house, Kayla and the other juvenile consumed $10 to $15 worth of food.
On November 22, 2006, the district attorney filed a petition charging Kayla with one count of residential burglary (Pen. Code, § 459).
On January 4, 2007, the district attorney filed an amended petition charging Kayla with two misdemeanors -- unauthorized entry and petty theft. However, after Kayla balked at admitting the misdemeanor charges in exchange for the dismissal of the original petition, the court struck the amended petition and an adjudication hearing was held on the original burglary charge.
Following Kayla’s adjudication for first degree burglary on January 16, 2007, the court adjudged Kayla a ward of the court (Welf. & Inst. Code, § 602), placed her on probation in the custody of her grandparents, and ordered her to complete seven days in the juvenile work program, which it then suspended.
All further statutory references are to the Welfare and Institutions Code.
Kayla’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Kayla has not responded to this court’s invitation to submit additional briefing. However, our review of the record indicates that neither the juvenile court nor the prosecutor considered Kayla for deferred entry of judgment (DEJ) as required by section 790 and we will remand the matter for this purpose.
Section 790 provides:
“(a) Notwithstanding Section 654 or 654.2, or any other provision of law, this article shall apply whenever a case is before the juvenile court for a determination of whether a minor is a person described in Section 602 because of the commission of a felony offense, if 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.
“(b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply. If the minor is found eligible for deferred entry of judgment, 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. Upon a finding that the minor is also suitable for deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment. Under this procedure, the court may set the hearing for deferred entry of judgment at the initial appearance under Section 657. The court shall make findings on the record that a minor is appropriate for deferred entry of judgment pursuant to this article in any case where deferred entry of judgment is granted.” (Italics added.)
Further, California Rules of Court, rule 5.800, subdivision (b) provides:
“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 of (a) are met. If the prosecuting attorney's review reveals that the requirements of (a) have been met, the prosecuting attorney must file Determination of Eligibility – Deferred Entry of Judgment – Juvenile (form JV-750) with the petition.” (Italics added.)
“‘The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The sections provide that in lieu of jurisdictional and dispositional hearings, a minor 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 successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. (§§ 791, subd. (a)(3), 793, subd. (c).)’ [Citation.]” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1121-1122.) Here, although Kayla was eligible for DEJ, neither the court nor the prosecutor considered her eligibility or suitability for DEJ. In view of this, we will remand this matter to the juvenile court so that the court and the prosecutor may comply with the requirements of section 790.
Further, following independent review of the record we find that, with the exception of the issue discussed above, no reasonably arguable factual or legal issues exist.
DISPOSITION
The case is remanded to the juvenile court for further proceedings in compliance with sections 790 et seq., and California Rules of Court, rule 5.800. If, as a result of those proceedings, the juvenile court grants DEJ to Kayla, it shall issue an order vacating the findings and orders. If the juvenile court denies DEJ to Kayla, it shall make its order continuing in effect the judgment, subject to Kayla’s right to have the denial of DEJ and the findings and orders reviewed on appeal. (See People v. Dyas (1979) 100 Cal.App.3d 464, 470.)