Opinion
A149639
11-13-2017
In re S.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1400783)
The minor in this juvenile delinquency proceeding appeals from the juvenile court's disposition contending the prosecuting attorney and juvenile court failed to comply with mandatory procedures regarding consideration of her eligibility and suitability for deferred entry of judgment. The People concede the point. We will therefore reverse and remand for further proceedings in compliance with the relevant statutes and rule.
BACKGROUND
The minor who is the subject of these proceedings, S.B., is one of five siblings whose mother's parental rights were terminated after her mental health challenges and chronic substance abuse prevented her from reunifying with her children. The history of those dependency proceedings, which were adjudicated in the Alameda County Superior Court and Contra Costa County Superior Court, is recounted in an earlier appellate opinion issued by this court, Lois V. v. Superior Court (Feb. 29, 2016, A146815) (nonpub. opn.). S.B. was 14 when those proceedings were initiated in January 2014. She was placed in ten or more different group homes as part of the dependency proceedings. Each time, she absconded, and frequently engaged in street prostitution and substance abuse while AWOL. Her history of running away meant she was not attending school on a regular basis. This only added to the serious difficulties she faced, which included suffering from ADHD and bipolar disorder, clinically significant post-trauma symptoms associated with her traumatic upbringing, lack of consistent parenting and education, and serious learning difficulties related to emotional disturbance. At 15 years old, S.B. was in ninth grade but was performing at a third to fifth grade level.
In May 2014, S.B. admitted a misdemeanor violation of Penal Code section 415 (disturbing the peace) after she was arrested for offering sexual services to an undercover officer. In December of that year, her probation for that offense was terminated unsuccessfully based on her repeated violation of the conditions of her probation by leaving her placements without permission and in one instance removing a GPS tracker.
On February 25, 2016, a wardship petition for S.B. was filed under Welfare and Institutions Code section 602, subdivision (a) in Santa Clara County Superior Court. The petition was based on incidents occurring at or near a group home where she had been placed in San Jose, California. The petition charged S.B. with three felonies: assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); second degree robbery (id., §§ 211-212.5, subd. (c)); and false imprisonment (id., §§ 236-237). The probation officer's detention hearing report and an accompanying police report indicate these charges were based on allegations that S.B. and another young woman pushed a fellow resident of the group home to the ground, kicked her, pulled her hair, stripped her of most of her clothing and threatened to kill her if she did not make money for them through prostitution. Thereafter, S.B. and her alleged accomplice accused the counselor who reported their assault to police of being a "snitch," blocked her from leaving her office, unplugged the telephones, forcibly grabbed her cellphone, shoved and hit her, threatened to kill her and demanded cash as a condition of returning her cellphone. The petition requested and the court issued a warrant for S.B.'s arrest.
Except as otherwise indicated, references to sections are to the Welfare and Institutions Code.
After this incident, S.B. absconded again and evaded arrest for a time, but in July 2016 police arrested her in San Francisco and she was detained at the Santa Clara County juvenile hall. In August, S.B. admitted to two felony counts: battery inflicting serious bodily injury (Pen. Code, § 243, subd. (d)) and false imprisonment (id., §§ 236-237). The Santa Clara County juvenile court accepted S.B.'s admission, dismissed the other charges, granted dual (dependency and delinquency) status, made probation the lead agency and transferred the case to Contra Costa County. At the hearing, S.B.'s counsel stated, "It appears based on reduction [of] charges that [S.B.] would be eligible for DEJ," meaning "Deferred Entry of Judgment," and requested that the court "put that on the minute order." The court agreed, provided in its order that "Deferred Entry of Judgment may be available in Contra Costa" and gave the Contra Costa County juvenile court permission "to unsustain the petition."
After the juvenile court in Contra Costa County accepted the transfer of S.B.'s case from Santa Clara County, it ordered that S.B. be detained at juvenile hall. At the disposition hearing on the transferred petition, the court adjudged S.B. a ward of the court with no termination date, found that her welfare required that her custody be removed from her mother, and ordered the probation department to take custody and place her in a court-approved home or institution for a period not to exceed her maximum custody time of four years and eight months or until her 21st birthday. The court committed her to a program called Girls In Motion for a term of at least nine months, and ordered the probation department to prepare an exit or reentry plan at the seven-month point.
Regarding deferred entry of judgment, the court noted that the Santa Clara County juvenile court's minute order noted S.B. was potentially eligible for DEJ, but stated, "I don't believe that to be true, given how the matter was resolved, amended counts allowing pleas to something lesser." Further, the court stated, even if S.B. were "statutorily eligible for DEJ," it found she "is clearly unsuitable for DEJ" and that "[t]here are no rehabilitative services that could be offered to her under a DEJ program to meet her needs, so I deem her ineligible, and even if eligible, unsuitable for DEJ."
DISCUSSION
S.B.'s sole argument on appeal is that neither the prosecuting attorney nor the Contra Costa County juvenile court complied with the mandatory procedures for determining whether S.B. was eligible and suitable for deferred entry of judgment. The DEJ provisions of the Welfare and Institutions Code, contained in sections 790 to 795, " ' "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." ' " (In re Joshua S. (2011) 192 Cal.App.4th 670, 675 (Joshua S.).)
"A juvenile is eligible for a DEJ if (1) the minor has not previously been adjudged a ward of the court for the commission of a felony offense, (2) the charged offense is not listed in section 707, subdivision (b), (3) the minor has not previously been committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, (4) probation has never been revoked for the minor without having been completed, (5) the minor is at least 14 years old, (6) the minor is eligible for probation under Penal Code section 1203.06, and (7) the charged offense is not rape or other specified sexual offenses. (§ 790, subd. (a).)" (In re Trenton D. (2015) 242 Cal.App.4th 1319, 1322-1323.) "Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review the child's file to determine if the requirements of [subdivision] (a) are met. If the prosecuting attorney's review reveals that the requirements of [subdivision] (a) have been met, the prosecuting attorney must file Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV-750) with the petition." (Cal. Rules of Court, rule 5.800(b)(1).) Under section 790, subdivision (a), the prosecuting attorney must also provide written notification to the minor that includes specified information about DEJ and the procedures for obtaining it. Even if the prosecuting attorney determines the child is ineligible, he or she must complete and provide a copy of form JV-750 to the court, the child and the child's attorney. (Rule 5.800(e).) Section 792 further requires the court to issue a citation directing the party with custody of the child to appear and bring the child to the hearing at which DEJ will be addressed at least 24 hours prior to that hearing. The Judicial Council has created form JV-751 that may be used for that purpose.
Further references to the Rule will be to Rule 5.800 of the California Rules of Court.
As requested by S.B., we will take judicial notice of form JV-751. (See In re Trenton D., supra, at p. 1324, fn. 2.) --------
The court may either grant DEJ to the minor summarily or conduct a hearing at which it "must consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties." (Rule 5.800(f); Joshua S., supra, 194 Cal.App.4th at p. 677.) "Although . . . the decision to grant DEJ is a matter of discretion for the juvenile court, appellate courts have concluded that the procedures for considering DEJ reflect a 'strong preference for rehabilitation of first-time nonviolent juvenile offenders' and limit the court's power to deny DEJ such that denial of DEJ to an eligible minor who wants to participate is proper only when the trial court finds ' "the minor would not benefit from education, treatment and rehabilitation." ' " (Joshua S., at pp. 675-676.)
" '[T]he 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.' " (Joshua S., supra, 192 Cal.App.4th at pp. 677-678.)
In this case, the parties do not dispute that the prosecutor and the court failed to follow the mandatory procedures provided by the DEJ statute and Rule 5.800. First, the prosecuting attorney did not file a form JV-750 (Determination of Eligibility—Deferred Entry of Judgement—Juvenile) with the wardship petition or provide S.B. or her attorney with a copy of that document. (See Rule 8.500(b), (e).) He did not do so either prior to the Santa Clara County juvenile court hearing or the post-transfer hearing held by the Contra Costa County juvenile court. Nor did the prosecuting attorney review the file to determine whether S.B. was eligible for DEJ or inform the court and the minor of the grounds for his determination. (See § 790, subd. (b).) Third, the court did not issue a citation (such as form JV-751) directing the party with custody of S.B. to appear and bring S.B. to the hearing on DEJ, as required by section 792. Fourth, the court neither summarily granted DEJ nor examined the record, and it did not conduct a hearing addressing the factors relevant to suitability and make the final determination regarding S.B.'s education, treatment, and rehabilitation. (See Joshua S., supra, 194 Cal.App.4th at p. 677.)
S.B. contends she is eligible for DEJ, and as we have discussed, the Santa Clara County juvenile court agreed with her. She also contends that the failure to comply with the requirements of the DEJ statutes and Rule deprived her of due process. The Attorney General does not concede that she is eligible and does not address S.B's due process argument. However, both parties agree that this case should be remanded "to cure the notification defects," so the "issues may be fully litigated on remand," and so the prosecuting attorney and juvenile court may determine eligibility in the first instance "as required by the DEJ statutes." Among other things, S.B. contends that she was denied, by the prosecutor's and court's failure to follow the mandatory procedures, of notice and the opportunity to contest "the Contra Costa court's sua sponte determination of ineligibility" and of notice and a meaningful opportunity to be heard prior to the court's "sua sponte" " 'findings of exclusion and unsuitability.' "
We need not resolve S.B.'s due process argument; nor will we decide the eligibility or suitability issues in the first instance because the record has not been developed and the issues have not been adequately briefed either below or in this court. Rather, we conclude that the prosecutor's and juvenile court's failures to comply with the mandatory requirements of the DEJ statutes and Rule require that we vacate that court's September 30, 2016 order and its oral findings regarding eligibility and suitability, and remand for the court to comply with, and require the prosecuting attorney to comply with, the DEJ statutes and Rule 5.800.
DISPOSITION
The September 30, 2016 order of the juvenile court is vacated and the case is remanded for further proceedings consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.