Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD062593. Juliet Boccone, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Poochigian, J.
Appellant, Martin S., a minor, was initially adjudged a ward of the juvenile court in February 2009, following his admission that he committed misdemeanor vandalism (Pen. Code, § 594, subd. (a)). The juvenile court placed appellant on probation.
In May 2009, and again in November 2009, appellant admitted allegations that he violated his probation. On each occasion, the court continued appellant as a ward of the court and continued him on probation.
In the instant case, in June 2010, following a contested jurisdiction hearing, the court found true an allegation that appellant committed a violation of Penal Code section 417, subdivision (a)(1) (exhibiting a deadly weapon), and that in committing that offense he acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)). In August 2010, following the subsequent disposition hearing, the court again continued appellant as a ward of the court, placed him in the custody of the Tulare County Probation Department (TCPD), and ordered that he serve 365 days in the TCPD Youth Facility.
On appeal, appellant contends the court erroneously (1) failed to consider whether appellant was eligible for the deferred entry of judgment (DEJ) program (Welf. & Inst. Code, § 790 et seq.), and (2) failed to declare, on the record, whether the instant offense was a felony or misdemeanor. The People concede these points. We will find both of appellant’s contentions meritorious and remand for further proceedings.
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
DISCUSSION
Deferred Entry of Judgment
Appellant argues, and the People concede, that this court must reverse and remand for further proceedings because the court failed to determine whether appellant is eligible for the DEJ program. We agree.
The DEJ provisions have been explained as follows: “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).)” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
Under the DEJ statutory scheme, the prosecuting attorney has the initial duty to assess the eligibility of the minor for DEJ. Either before the filing of the wardship petition or as soon as possible thereafter, the prosecuting attorney must review the minor’s file and, if he or she determines the minor meets the DEJ eligibility requirements, must notify the court of his or her determination (§ 790, subd. (b); Cal. Rules of Court, rule 5.800(b)(1); (In re Luis B. (2006) 142 Cal.App.4th 1117, 1122 (Luis B.)) and provide “written notification to the minor, ” which must include, inter alia “[a] full description of the procedures for deferred entry of judgment” (§ 791, subd. (a)(1)) and “[a] clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment ….” (§ 791, subd. (a)(3)).
All rule references are to the California Rules of Court.
A minor is eligible for DEJ under section 790 if he or she is accused in a juvenile wardship proceeding of committing a felony offense and 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.” (§ 790, subd. (a)(1)-(6).)
Effective July 1, 2005, the Department of Youth Authority was renamed “the Department of Corrections and Rehabilitation, Division of Juvenile Facilities” (DJF). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) We will use the designation DJF.
If the prosecuting attorney finds the minor eligible, the separate question of the minor’s “suitability” for DEJ remains. (Luis B., supra, 142 Cal.App.4th at p. 1123.) “The trial court then has the ultimate discretion to rule on [this question] after consideration of [certain] factors specified [by statute and rule of court], and based upon the ‘“standard of whether the minor will derive benefit from ‘education, treatment and rehabilitation’ rather than a more restrictive commitment. [Citations].”’” (Ibid.) But “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 regarding education, treatment, and rehabilitation....’ [Citations.]... The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made. [Citation.]” (Ibid.)
Here, as the parties agree, appellant meets each of the statutory requirements for DEJ eligibility. His only two previous adjudications were for misdemeanors; the instant offense is not listed in section 707, subdivision (b); appellant has not previously been committed to the DJF; although appellant has been found to be in violation on two occasions, his probation has never been revoked; he was 16 years old at the time of the disposition hearing; and he is eligible for probation pursuant to Penal Code section 1203.06. However, the prosecuting attorney did not satisfy the statutory requirements to determine eligibility and provide notice, and the juvenile court failed to conduct the necessary inquiry and exercise discretion to determine whether appellant would derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. Thus, as the parties agree, the court erred. This error requires that we set aside the jurisdictional findings and dispositional orders, and remand the case to the juvenile court for further proceedings in compliance with section 790 et seq. and rule 5.800. (Luis B., supra, 142 Cal.App.4th at p. 1123.)
Section 702Appellant contends the court erred in failing to declare whether the instant offense was a felony or misdemeanor, the record does not demonstrate the court was aware it had the discretion under section 702 to do so, and therefore, “in the event this Court does not agree with [appellant’s contention that remand for further proceedings is required because the court failed to determine whether appellant is eligible for the DEJ program], his case must still be remanded to juvenile court for an express determination of whether the offense is a felony or misdemeanor and for possible recalculation of the maximum confinement time.” The People concede the claim of error and the need for remand.
The offense of exhibiting a deadly weapon (Pen. Code, § 417, subd. (a)(1)), when committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)), may be punished as either a felony or misdemeanor. (Pen. Code, § 186.22, subd. (d).) Section 702 provides, in relevant part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” “The language of [section 702] is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Thus, rule 5.778(f) provides, in relevant part: “(f) Findings of the Court (§ 702) [¶ ] On an admission or plea of no contest, the court must make the following findings noted in the minutes of the court: [¶] … [¶] (9) In a section 602 matter, the degree of the offense and whether it would be a misdemeanor or felony had the offense been committed by an adult. If any offense may be found to be either a felony or misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing.” And rule 5.790(a) provides in relevant part: “At the disposition hearing: [¶] (1) If the court has not previously considered whether any offense is a misdemeanor or felony, the court must do so at this time and state its finding on the record. If the offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and must expressly declare on the record that it has made such consideration and must state its finding as to whether the offense is a misdemeanor or a felony.”
At no time at the disposition hearing did the court explicitly state it had considered whether the offense of which appellant stands adjudicated was a misdemeanor or a felony. Therefore, the court erred.
Further, the juvenile court did not at any time refer to its discretion to declare the offense a misdemeanor; neither the prosecution, defense counsel, nor the probation officer, pointed out to the court that it had such discretion; and the report of the probation officer, although it referred to the instant offense as a felony, did not indicate that it could be a misdemeanor. Under In re Manzy W., supra, 14 Cal.4th at p. 1209 in determining whether remand is necessary, “[t]he key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.”
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are reversed and the matter is remanded to the juvenile court. On remand, the juvenile court is directed to conduct further proceedings in compliance with Welfare and Institutions Code 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 appellant, it shall issue an order vacating both the jurisdiction findings and the disposition orders. If the juvenile court denies DEJ to appellant, it shall reinstate its jurisdiction findings only and conduct a new disposition hearing at which the court shall declare, pursuant to Welfare and Institutions Code section 702, whether the instant offense is a felony or misdemeanor.