Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 07CEJ601052, Timothy A. Kams, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Kane, J.
This is an appeal from a dispositional order adjudging appellant D.C. a ward of the court and committing him to local custody for up to one year. (See Welf. & Inst. Code, §§ 602, 725 [all further section references are to this code unless otherwise stated].) Appellant contends the court had a sua sponte duty to determine whether appellant was suitable for deferred entry of judgment (see § 790 et seq.) and that it failed to discharge that duty in accordance with statutory requirements. We will conclude the court had no such duty in the circumstances of this case.
Facts and Procedural History
During a patdown of appellant, a police officer found a loaded.38-caliber revolver in appellant's waistband. A section 602 petition was filed alleging appellant had violated the following laws: Penal Code section 12025, subdivision (a)(2) (having a concealed firearm on his person, count 1); Penal Code section 12031, subdivision (a)(1) (carrying a loaded firearm, count 2); Penal Code section 12101, subdivision (a)(1) (possession of a concealable firearm by a minor, count 3); and Penal Code section 12101, subdivision (b)(1) (possession of live ammunition by a minor, count 4). Counts 1 through 3 were alleged to be felonies; count 4 was alleged to be a misdemeanor.
At the same time the wardship petition was filed on September 3, 2008, the district attorney filed a determination that appellant was statutorily eligible for deferred entry of judgment pursuant to section 790. Attached to that determination of eligibility were a notice of hearing and written notification of the requirements and conditions of the deferred entry of judgment program. (See § 791.) The notice of hearing did not set a hearing date for determining suitability for the program; instead, the box entitled "YOU ARE ORDERED TO APPEAR AT A HEARING" was left blank.
On September 10, 2008, appellant first appeared in juvenile court. He was accompanied by his attorney and his mother. Appellant admitted count 3, minor in possession of a concealable firearm, as part of an agreement under which the district attorney would move to dismiss the remaining counts of the petition. The agreement did not include a proposed disposition. At no time during the hearing was there any mention of the deferred entry of judgment program. The agreement and appellant's admission of count 3 were accepted by the court; the remaining counts were dismissed. The matter was set for a dispositional hearing.
At the dispositional hearing, the probation officer recommended appellant be released on probation. The court rejected this recommendation and committed appellant to a one-year custodial boot-camp program.
Appellant filed a timely notice of appeal.
Discussion
Appellant contends that once the district attorney determined appellant met the statutory eligibility requirements, the court had a duty to exercise its discretion to grant or deny deferred entry of judgment in appellant's case. He contends the court could summarily grant deferred entry of judgment but can deny it only after a hearing at which the court determined appellant was not suitable for the program. (See § 790, subd. (b).)
Participation by a minor in the deferred entry of judgment program is uniquely voluntary. First, the minor must consent to consideration for the program and must waive his or her right to a "speedy jurisdictional hearing." (§ 791, subd. (b).) Included in this consent is a recognition by the minor that he or she must "admit[] each allegation contained in the petition." (§ 790, subd. (a)(3).) Only after the minor takes these two steps is the court required to summarily grant deferred entry of judgment or else refer the matter for a probation report and schedule the requisite hearing. (§ 791, subd. (b).)
In the present case, appellant did not consent to participation in the program and did not waive his right to a speedy jurisdictional hearing, even though appellant had been fully apprised in writing of his right to do so. Instead, appellant informed the court that he was willing to admit only one of the charges against him, and to do so only in return for dismissal of the other three charges.
Appellant acknowledges that two cases hold that a minor who does not consent to participation in the deferred entry of judgment program is not entitled to a hearing on his or her suitability for the program. (See In re Usef S. (2008) 160 Cal.App.4th 276; In re Kenneth J. (2008) 158 Cal.App.4th 973.) The Kenneth J. court described as a "mischievous, if not self-defeating, construction" of sections 790 and 791 a claim that those sections "compel[] a juvenile court to hold a hearing to consider [deferred entry of judgment] for a minor who evinces no interest whatsoever in that option." (160 Cal.App.4th at p. 980.)
Appellant contends, however, that the present case is not governed by Kenneth J. and Usef S. because in both of those cases the minor sought a contested jurisdictional hearing after the court had set a date for a deferred entry of judgment hearing whereas, in this case, appellant did not contest the petition. This difference does not change in any way the underlying point of Kenneth J. and Usef S., however: if a minor manifests a desire not to participate in the program, holding a hearing on suitability of the minor for the program would be a waste of time. (See In re Usef S., supra, 160 Cal.App.4th at p. 285.)
Here, after being advised in writing of his eligibility for the deferred entry of judgment program, appellant entered into a dispositional agreement that did not admit all of the charges against him and did not defer the jurisdictional hearing. Accordingly, "any duty the juvenile court may have had to determine whether appellant was suitable for [deferred entry of judgment] was excused." (In re Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.)
Disposition
The judgment is affirmed.