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In re J.C.

California Court of Appeals, First District, First Division
Apr 28, 2009
No. A122665 (Cal. Ct. App. Apr. 28, 2009)

Opinion


In re J.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.C., Defendant and Appellant. A122665 California Court of Appeal, First District, First Division April 28, 2009

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 174223

Marchiano, P.J.

J. C. appeals from a dispositional order adjudging him a ward of the court after he admitted violating Penal Code section 12101, subdivision (a)(1) (minor in possession of a concealable firearm). Defendant contends that the court erred in failing to determine whether he was suitable for deferred entry of judgment (DEJ), and in failing to specify whether his offense was a felony or a misdemeanor. We agree with these arguments and remand for further proceedings.

I. BACKGROUND

Defendant was declared a dependent of the Alameda County Juvenile Court in 1998, at age six. A status review report in the dependency case indicated that defendant was attending high school and living in a group home in December 2007. His placement with an aunt had been terminated in March 2007 “due to escalating behavioral problems,” and a previous seven-year placement with a cousin had been terminated “for the same reasons.” The report stated that defendant had “a history of compulsive stealing. There have been many incidents of him stealing from relatives, friends, group home staff and other resident youth.” A status review report filed on June 5, 2008, stated: “The minor’s attitude and behavior towards his placement has shifted from being positive to negative during this reporting period. He has exhibited lying and stealing behaviors.... Academically he has performed below his level of potential and is in danger of failing all of his classes.”

Defendant was charged with the firearm offense in a wardship petition filed in Contra Costa County on June 9, 2008. At the June 10, 2008 detention hearing, a Welfare and Institutions Code section 241.1 assessment (dependency versus wardship) hearing was scheduled for June 18, 2008. On June 11, 2008, the Contra Costa County District Attorney’s Office filed a “Determination of Eligibility” form indicating that defendant was eligible for DEJ. On June 18, 2008, the section 241.1 hearing was continued to June 25, 2008. At the June 25, 2008 hearing, defendant admitted the firearm offense, and the case was transferred to Alameda County for disposition. The Alameda County Superior Court ordered preparation of a section 241.1 evaluation.

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

According to the dispositional report, defendant admitted to police that a loaded gun found at his group home belonged to him. He told police that he had possessed the loaded firearm for three weeks, carried it to school, and left it nearby when he went to class. He told the probation officer that he kept the gun, which he found in some bushes, because “scary things happen in Richmond” and he felt safer having it.

The probation officer recommended that, because of the serious nature of the offense, defendant’s “status should be escalated from a [section] 300 dependency of the Court to a [section] 602 status.” The section 241.1 report indicated that the child welfare worker on defendant’s case agreed with this recommendation.

At the section 241.1 and dispositional hearing, defendant’s dependency counsel said, “I understand the recommendation and will submit it on the recommendation”; his delinquency counsel urged the court to “let him remain a 300.” The referee declared defendant a ward of the court, and dismissed the dependency case. Defendant sought rehearing, and the court denied the application based on the seriousness of the offense.

II. DISCUSSION

A. DEJ

Section 790 et seq. “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 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.” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.) “While the court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make ‘the final determination [of the minor’s suitability for DEJ].’ ” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).)

Here, it is unclear whether defendant received notice of the prosecution’s determination that he was eligible for DEJ. While the prosecutor filed a notice of that determination, the record does not establish that the notice, or the other information required to be furnished to defendant under section 791, subdivision (a), was ever conveyed to him. (Compare In re Usef S. (2008) 160 Cal.App.4th 276, 281, 283 (Usef S.) [prosecution provided written notice of DEJ eligibility to both juvenile court and minor]; In re Kenneth J. (2008) 158 Cal.App.4th 973, 977 (Kenneth J.) [prosecution notified minor and his guardian of eligibility determination in accordance with §§ 791, 792].)

The People submit that we must nonetheless presume that the duty to provide the foregoing information was in fact performed. (Evid. Code, § 664 [presumption of regular performance of official duty].) But even if the prosecution fulfilled all of it duties with respect to DEJ, the court did not. Once defendant was determined to be eligible for DEJ, the court was required to grant DEJ summarily or hold a hearing on the suitability of DEJ in defendant’s case. (Luis B., supra, 142 Cal.App.4th at p. 1123.) Since neither step was taken, the dispositional order must be set aside pending a determination as to whether DEJ should be granted. (Id. at pp. 1123-1124.)

In so holding, we are expressing no opinion on defendant’s suitability for DEJ.

A minor can waive his or her right to a DEJ suitability determination, but the cases that have so held are distinguishable. DEJ suitability hearings were scheduled in Usef S. and Kenneth J., but the minors in those cases exhibited no interest in DEJ and proceeded instead to contest jurisdiction. (Usef S., supra, 160 Cal.App.4th at p. 281; Kenneth J., supra, 158 Cal.App.4th at pp. 977-978.) Here, no DEJ suitability hearing was scheduled, and defendant did not contest the wardship petition.

The People note that a minor who consents to DEJ must waive time for the pronouncement of judgment, and admit the allegations of the petition, rather than plead no contest. (§ 791, subd. (a)(3); Cal. Rules of Court, rule 5.800(f).) These requirements apply at a DEJ suitability hearing. (Cal. Rules of Court, rule 5.800(f) [“Conduct of hearing”].) Since no such hearing was held in defendant’s case he cannot be faulted for failing to satisfy these requirements. Defendant did not plead no contest in any event. His attorney told the court that defendant was “prepared” to enter a no contest plea, but when the plea was taken he simply admitted the truth of the offense alleged in the petition.

The People argue that defendant waived his right to be evaluated for DEJ because he objected to being converted from a dependent to a ward. As defendant observes, this argument is untenable insofar as it presumes that dependent minors are ineligible for DEJ. (See § 790, subd. (a) [minors meeting specified criteria are eligible for DEJ “[n]otwithstanding... any other provision of law”; see also Seiser et al., Cal. Juvenile Courts Practice and Procedure (2009 ed.) § 1.11(3)(a) [dependent minor may be granted DEJ].) The People speculate that, by contesting wardship, defendant decided to seek an “all-or-nothing” disposition of the delinquency petition in lieu of DEJ. However, no such intent can be inferred on a record where defendant was not called upon to take any position on the DEJ issue because it was never broached by the court.

B. Degree of the Offense

Defendant argues, the People concede, and we agree that the court was required to determine whether the violation of Penal Code section 12101, subdivision (a)(1) was a felony or a misdemeanor. (§ 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1201.)

III. DISPOSITION

The judgment (dispositional order) is reversed, and the case is remanded for further proceedings in compliance with section 790 et seq. If the juvenile court grants DEJ to defendant, it shall issue an order vacating the judgment, and determine whether to reinstate the dependency case. If DEJ is denied, the court shall order the judgment continued in effect, subject to defendant’s right to have the judgment and the denial of DEJ reviewed on appeal. If and when judgment is entered, the court shall specify whether the offense was a felony or a misdemeanor.

We concur: Margulies, J., Graham, J.

Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re J.C.

California Court of Appeals, First District, First Division
Apr 28, 2009
No. A122665 (Cal. Ct. App. Apr. 28, 2009)
Case details for

In re J.C.

Case Details

Full title:In re J.C., a Person Coming Under the Juvenile Court Law. v. J.C.…

Court:California Court of Appeals, First District, First Division

Date published: Apr 28, 2009

Citations

No. A122665 (Cal. Ct. App. Apr. 28, 2009)