Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PDL20060186
OPINION
ROBIE, J.
Following a contested jurisdictional hearing, the El Dorado County Juvenile Court found that the minor, Dylan H., was within the provisions of Welfare and Institutions Code section 602 in that he had committed the crime of making criminal threats. The minor was placed on probation and the court ordered him to be placed on the electronic arrest program for 83 days.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, the minor contends the juvenile court failed to determine whether the minor was eligible for deferred entry of judgment (DEJ). We agree and remand the matter to the juvenile court.
BACKGROUND
On October 16, 2006, the minor, a 15-year-old high school student told his classmate, Ryan L., he had found a sniper rifle, two pistols, and a shotgun at an abandoned house. The minor said he would bring one of the pistols over to Ryan’s house. Ryan asked what would happen if his mother answered the door, and the minor “kind of laughed” and told Ryan he would shoot the boy’s mother.
The minor also told Ryan he would bring the guns to school, hide on a roof, and shoot one of Ryan’s friends as he walked by. The minor said he would also hurt other people at school.
After discussing this conversation with a friend, Ryan reported the matter to school officials. An El Dorado County Sheriff’s deputy was dispatched to the school and interviewed the minor. The minor admitted telling Ryan about a plan to arrange a meeting with a classmate, wait on the roof with a sniper rifle, and shoot the classmate when he showed up for the meeting. He also admitted telling Ryan he would shoot the boy’s mother if she did not let him bring a gun into Ryan’s house.
The deputy went to the minor’s home, where the minor’s stepfather had a 12-gauge shotgun, a Russian SKS rifle, and two revolvers. The loaded shotgun was under the stepfather’s bed, while the other weapons were kept in separate cases in the parents’ bedroom closet. The bedroom door was kept locked, and the pistols and SKS also had locks. The minor told the deputy he could get to his stepfather’s weapons if he wanted to.
The petition was filed on October 18, 2006, and the jurisdictional hearing was held on November 13, 2006. On November 20, 2006, the district attorney determined the minor was eligible for the DEJ program. The dispositional hearing was held on November 21, 2006.
At the dispositional hearing, the juvenile court declared it had read and considered the probation report and generally agreed with it “except I think he [the minor] needs more time on the Electronic Arrest Program to keep him home and not -- and to stay out of trouble.” The probation report recognized the minor was eligible for DEJ, but recommended against the program, stating: “Dylan meets the eligibility requirements of Deferred Entry of Judgment (DEJ) pursuant to 790 WIC. However, of concern is the magnitude of this offense that includes potential violence, instilling fear in the victim and his family, as well as potential fear in the community. Even though Dr. Roeder states the minor does not present as an ‘imminently dangerous youngster,’ due to the aggravating factors, it is believed the minor is not appropriate for Deferred Entry of Judgment.”
No mention of DEJ was made at the dispositional hearing.
DISCUSSION
The minor’s sole contention on appeal is that the juvenile court failed to consider his eligibility for the DEJ program. We agree.
At the outset, we reject the People’s contention that the minor forfeited the error by failing to object and that the court implicitly rejected that DEJ was proper. The court had a “mandatory duty” to either grant DEJ or hold a hearing on the matter, neither of which occurred. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.)
When a minor faces section 602 proceedings for a felony offense, the prosecutor must review the file to determine whether the minor meets the qualification for DEJ. (§ 790, subds. (a), (b).)
If the court grants DEJ, the minor admits the allegations in the petition and waives time for pronouncement of judgment. The court then places the minor on probation. (§ 791, subd. (a)(3).) If the minor successfully completes probation, the charges must be dismissed. The arrest leading to the charges is deemed not to have occurred, and the records of the proceeding are sealed. (§ 793, subd. (c).)
If the minor is found eligible, the prosecutor must file a declaration stating the grounds for this determination and provide written notification to the minor explaining the procedure. (§§ 790, subd. (b), 791, subd. (a).)
If the minor consents and waives the right to a speedy jurisdictional hearing, the judge may summarily grant DEJ or refer the matter to the probation department for further evaluation. (§ 791, subd. (b).) The court has discretion to grant or deny DEJ after receiving the probation report. (In re Sergio R. (2003) 106 Cal.App.4th 597, 605.)
In exercising its discretion, the juvenile court must determine “‘“whether the minor will derive benefit from ‘education, treatment, and rehabilitation’ rather than a more restrictive environment.”’” (In re Luis B., supra, 142 Cal.App.4th at p. 1123.) If the district attorney fails to determine the minor’s eligibility and the juvenile court does not exercise its discretion, then the findings and dispositional orders must be set aside and the case sent back for compliance with the DEJ procedure. (Ibid.)
As the minor correctly points out, the district attorney did not determine the minor was eligible for DEJ until after the contested jurisdictional hearing. He argues the district attorney’s tardiness and the juvenile court’s failure to mention the DEJ at the disposition hearing, demonstrate that the court erred by failing to exercise its statutory discretion. He asks us to set aside the court’s orders and remand for further proceedings in compliance with the DEJ provisions of the Welfare and Institutions Code. We agree.
Two errors were committed in this case -- the district attorney and the court failed to make the appropriate DEJ determinations before the jurisdictional hearing, and the juvenile court never made findings regarding whether the minor would be given DEJ. These errors require us to remand the matter to the juvenile court “for further proceedings in compliance with section 790 et seq., and [California Rules of Court,] rule [5.800].” (In re Luis B., supra, 142 Cal.App.4th at p. 1123.)
California Rules of Court, rule 5.800 spells out, among other things, the procedures relating to DEJ.
DISPOSITION
The judgment is reversed, and the case is remanded back to the juvenile court for further proceedings consistent with section 790 et seq. and California Rules of Court, rule 5.800. If, as a result of those proceedings, the juvenile court grants DEJ to the minor, it shall issue an order vacating the findings and orders. If the juvenile court denies DEJ to the minor, it shall make its order continuing in effect the judgment.
We concur: BLEASE, Acting P.J., MORRISON, J.