Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 34718-J
REARDON, J.
Minor, R. H., appeals from the juvenile court’s disposition of wardship and formal supervision, contending that he was improperly denied deferred entry of judgment (DEOJ), and that the court failed to state whether the offense of which he was found guilty was a felony or misdemeanor. The Attorney General concedes the latter contention. To that extent, the matter will be remanded for the court to declare the status of the offense. Otherwise, the judgment will be affirmed.
The parties do not dispute the facts, which are drawn from the probation report.
At the time of his arrest, minor was the right-rear passenger of a vehicle. The driver, and the left-rear passenger, both adults, were also arrested. Three tablets of Ecstasy were recovered from minor’s pocket, and a loaded handgun was recovered under a sweatshirt on the right-rear seat where minor had been sitting. The driver had three grams of cocaine, four grams of marijuana, and over $1000 in his possession.
A juvenile wardship petition was filed, alleging five counts: (1) unlawful possession of a concealed firearm in a vehicle, (2) unlawful possession of a loaded firearm in a vehicle, (3) unlawful possession by a minor of a concealable firearm, (4) unlawful possession of a firearm not bearing a manufacturer’s identification number, and (5) possession of Ecstasy. At the same time, the District Attorney filed a notice that minor was eligible for DEOJ. This notice is required by Welfare and Institutions Code section 790, subdivision (b), and is provided on Judicial Council forms JV-750 and JV-751.
All further statutory references are to the Welfare and Institutions Code.
Section 790, subdivision (a) lists the basic eligibility requirements. According to the notice provided in this case, minor met all of these requirements. The parties do not dispute his basic eligibility. We, therefore, see no need to list these requirements.
The parties informed the court they had reached a resolution, whereby minor would admit his possession of Ecstasy and would state on the record that he had no knowledge of the firearm found in the vehicle. The court then took a waiver from minor of his constitutional rights and an admission of the possession of Ecstasy. In response to questions from the court, minor stated that he was unaware of the firearm in the vehicle. The prosecutor moved to dismiss the remaining counts, all of which pertained to the firearm. The matter was continued for disposition. No mention was made of whether or not minor continued to be eligible for DEOJ.
The probation report prepared for the dispositional hearing read, in part: “[T]he minor is not eligible for Deferred Entry of Judgment because he did not plead to all the charges alleged in the [section] 602 petition.” Minor’s counsel argued that DEOJ should be considered because her client had admitted all of the “provable” charges. The prosecutor contended that, because all of the charges had not been admitted, minor was not eligible. The court ruled as follows: “The Court’s satisfied with this report and satisfied with the way this agreement occurred. DEOJ is not possible. I read and considered this. The Court does take into consideration all the facts and circumstances surrounding the arrest. . . . DEOJ would not be appropriate. This is something that is very serious, and full wardship appears to be appropriate.”
Discussion
I.
Minor contends the court erred when it determined that he was no longer eligible for DEOJ because he failed to admit all of the allegations in the petition. This error, minor argues, prevented the court from exercising its discretion to determine whether he should be granted DEOJ. While both parties agree that minor met the basic eligibility requirements, the Attorney General argues—as the prosecutor did below—that minor was no longer eligible once he failed to admit all of the allegations in the petition.
In brief, the statutory scheme provides that a minor who satisfies certain basic requirements is eligible for DEOJ. (§ 790, subd. (a).) However, the minor must admit “each allegation contained in the petition.” (§ 791, subd. (a)(3).) The court then may grant DEOJ “[u]pon a finding that the minor is also suitable for deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts . . . .” (§ 790, subd. (b).) Thus, an eligible minor continues to be eligible if he admits all of the allegations of the petition, but the court is not required to grant all eligible minors DEOJ. Instead, the court may grant DEOJ only to those eligible minors who are also suitable, i.e., those the court determines will benefit from the program. “[T]he statutory language empowers but does not compel the juvenile court to grant” DEOJ. (In re Sergio R. (2003) 106 Cal.App.4th 597, 605.) The decision whether to grant DEOJ remains within the court’s discretion.
Minor argues that it would be inconsistent with the statute’s purpose to require a minor to admit allegations that were “untrue, unsupported by the evidence, or mistakenly charged by the district attorney.” However, we need not consider this contention when minor has failed to demonstrate that any of the allegations were untrue, unsupported by the evidence, or mistakenly charged. He relies solely upon his own statements to the court that he lacked knowledge of the firearm. If true, such lack of knowledge would preclude his guilt of the counts that were ultimately dismissed. Yet, he has not demonstrated that such lack of knowledge was the reason the counts were dismissed. In fact, the record demonstrates merely that the parties had reached a negotiated disposition involving the admission of one count. As a condition, the prosecutor required minor to state that he was unaware of the firearm. But, there is no evidence that the prosecutor believed minor or believed that, on the whole, he would be unable to prove the firearm allegations at trial. Indeed, we can speculate that the reason for requiring minor to state that he was unaware of the firearm on the record was to preclude his testifying, once the allegations against him had been dismissed, that the firearm was his, in support of either of the adult arrestees who might face criminal liability for the firearm. While reasonable, this explanation is speculation, but no more or less speculative than minor’s assertion, on this record, that the allegations were not provable.
In his reply brief on appeal, minor asserts, “. . . all parties acknowledged the gun charges were lacking in a factual basis . . . .” This assertion is unaccompanied by citation to the record. Furthermore, in our review of the record, we find no evidence that the prosecutor so acknowledged.
Had an amended petition been filed omitting the firearm allegations, or if the prosecutor had moved to amend the petition to strike those allegations, before minor’s admission, minor would have a far more compelling case that he had admitted all of the allegations and, so, remained eligible for DEOJ. However, here, the firearm allegations were not dismissed until after minor’s admission. Thus, the record demonstrates a negotiated disposition resulting in dismissal of some allegations, not an admission of “each allegation contained in the petition.” Consequently, minor was not eligible for DEOJ.
Furthermore, minor ignores the fact that, despite his ineligibility, the court appears to have also determined that he was not suitable for DEOJ, i.e., notwithstanding his ineligibility, the court would not have granted DEOJ anyway. Although the court commented that “DEOJ is not possible,” the court also indicated: “. . . DEOJ would not be appropriate. This is something that is very serious, and full wardship appears to be appropriate.” We find no error in the court’s denial of DEOJ.
II.
Minor argues, and the Attorney General concedes, that the court erred in failing to determine whether the drug possession finding was a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209, 1210.) While we affirm the judgment, we remand for the limited purpose of the court’s fulfilling its obligation to declare the status of the finding.
We concur: JONES, P. J., NEEDHAM, J.