Opinion
C092909
07-30-2021
In re P.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.S., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. JV140461
BLEASE, J.
The Mendocino County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, subdivision (a) charging the minor P.S. with committing battery with serious bodily injury. P.S. later admitted the charge and the matter was transferred for disposition to Sacramento County, where she resided. Although P.S. was eligible for deferred entry of judgment (DEJ), the Sacramento County juvenile court did not hold a hearing to determine P.S.'s suitability. P.S. now appeals, arguing: (1) the juvenile court in Mendocino County found her suitable for DEJ, and thus erred by transferring her case to Sacramento County for a disposition hearing rather than for imposition of probation under section 794; (2) the juvenile court in Sacramento County erred in failing to conduct a hearing on DEJ suitability and this case should be remanded for the court to exercise its discretion as to whether to grant DEJ; and (3) in the event we disagree with P.S.'s first two arguments, she suffered ineffective assistance of counsel because counsel failed to order the transcript of the hearing from Mendocino County and failed to raise the issue of DEJ suitability in Sacramento County.
Undesignated statutory references are to the Welfare and Institutions Code.
We disagree that the juvenile court in Mendocino County already found P.S. suitable for DEJ but agree with P.S. and accept the Attorney General's concession that the Sacramento County juvenile court was obligated to hold a suitability hearing and that its failure to do so was error. We will therefore remand this case so that the suitability hearing may be held. Because we agree that the case should be remanded, we need not reach P.S.'s ineffective assistance of counsel argument.
PROCEDURAL BACKGROUND
On February 24, 2020, the Mendocino County District Attorney's Office filed a juvenile wardship petition in case No. SCUK-JDSQ-20-182901-001, alleging that P.S. came within the jurisdiction of the court pursuant to section 602 for committing battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d). On the same date the wardship petition was filed, the prosecution filed a notice that P.S. was eligible for DEJ within the meaning of section 790 et seq. P.S. subsequently admitted the allegation as charged after defense counsel stated that she desired DEJ. Defense counsel stated that because P.S. was eligible for DEJ, she agreed with the district attorney to admit the allegation and then be transferred to Sacramento County, where she resided, for disposition. The court clarified that counsel just wanted to enter the admission at that juncture, and counsel agreed. During the colloquy, P.S. asked the court if she would go to jail if she admitted the allegation. The court responded: “No, I'm not going to send you to jail. I'm going to send you to Sacramento and they're going to put you on a DEJ over there, which is a deferred entry of judgment, which means you actually will not go to juvenile hall.” The matter was then ordered to be transferred for disposition to the Sacramento County Superior Court.
On October 9, 2020, a disposition hearing was held in Sacramento County. The Sacramento County Superior Court, sitting as a juvenile court, found that P.S. was eligible, but not suitable, for DEJ. The court adjudged her a ward of the juvenile court of Sacramento County under various terms and conditions such as, but not limited to, the following: appellant was committed to the care and custody of her father under the supervision of a probation officer; she was ordered (1) to participate in 20 hours of community service directed by the probation officer; (2) to have no contact with the victim; (3) to pay a restitution fine and victim restitution; and (4) to obey all laws.
Minor filed a notice of appeal.
DISCUSSION
I
The Mendocino County Juvenile Court's Findings
P.S. contends that the juvenile court in Mendocino County found her suitable for DEJ and erred in transferring her case to Sacramento County for a disposition hearing rather than for imposition of probation under section 794. We disagree with P.S.'s characterization of the juvenile court's statements.
A minor is eligible for DEJ if: (1) the minor has not previously been adjudged a ward of the court for the commission of a felony offense; (2) the charged offense is not listed in section 707, subdivision (b); (3) the minor has not previously been committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities; (4) probation has never been revoked for the minor without having been completed; (5) the minor is at least 14 years old; (6) the minor is eligible for probation under section 1203.06; and (7) the charged offense is not rape or any other specified sexual offense. (§ 790, subd. (a).)
Pursuant to section 790, subdivision (b) the prosecuting attorney must determine whether the minor is eligible for DEJ. Section 790, subdivision (b) further provides: “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.... 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.”
Here, the Mendocino County Juvenile Court did not make any findings on this record that P.S. was appropriate for DEJ. When defense counsel stated that P.S. was eligible for DEJ, and that was the path she wanted to take to resolve this case upon a transfer to Sacramento County, the juvenile court clarified that counsel just wanted to enter the admission at that juncture, and counsel agreed. During the colloquy, the court stated: “I'm not going to send you to jail. I'm going to send you to Sacramento and they're going to put you on a DEJ over there, which is a deferred entry of judgment.” The court then immediately clarified that the only way P.S. would go to juvenile hall is “if you were given a deferred entry of judgment on terms that you then violated.” (Italics added.) At no point did the Mendocino County Juvenile Court make a finding on the record that P.S. was suitable for DEJ under section 790, subdivision (b). Accordingly, we reject P.S.'s claim.
II
DEJ Suitability Hearing
P.S. contends, and the Attorney General concedes, that because the Sacramento County Juvenile Court failed to conduct a hearing on DEJ suitability, this case should be remanded for the court to exercise its discretion as to whether to grant DEJ. We accept the Attorney General's concession.
Once it is determined that a minor is eligible for DEJ, the juvenile court has discretion to rule on the minor's suitability for DEJ. (In re C.W. (2012) 208 Cal.App.4th 654, 660.) While the court is not required to grant DEJ, it is required to “follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) It is the mandatory duty of the juvenile court to either grant DEJ summarily or examine the record, conduct a hearing, and determine whether the minor is suitable for DEJ, based upon whether the minor will derive benefit from “education, treatment, and rehabilitation.” (§ 791, subd. (b); In re Joshua S. (2011) 192 Cal.App.4th 670, 677.)
In this court's prior opinion, In re D.L. (2012) 206 Cal.App.4th 1240, 1242-1245, the minor was eligible for DEJ, but there was no hearing on suitability for DEJ. In D.L., this court held that the trial readiness conference, at which the juvenile court ruled on D.L.'s suitability for DEJ, did not constitute a “hearing” on DEJ suitability, and the matter was remanded for such a hearing. (Id. at p. 1245.) Similarly, here, the juvenile court's summary finding of P.S.'s unsuitability for DEJ at the dispositional hearing did not constitute the required DEJ hearing on suitability. P.S. was entitled to a hearing on DEJ suitability. Accordingly, we remand this matter to the juvenile court for such a hearing.
DISPOSITION
The adjudication and disposition orders are vacated. The case is remanded to the Sacramento County Juvenile Court for a DEJ suitability hearing in compliance with section 790 et seq. and California Rules of Court, rule 5.800. If the juvenile court grants DEJ to P.S., the adjudication and disposition orders will remain vacated. If the juvenile court denies DEJ to P.S., it shall reinstate the adjudication and disposition orders, subject to P.S.'s right to have the denial of DEJ reviewed on appeal. (See In re Luis B., supra, 142 Cal.App.4th at pp. 1123-1124.)
We concur: RAYE, P. J., HULL, J.