IN RE: SALVADOR M. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this juvenile wardship proceeding, appellant Salvador M. contends, and the Attorney General agrees, that the adjudication and disposition orders must be vacated and the matter remanded to allow the juvenile court to consider his suitability for the statutory deferred entry of judgment (DEJ) program.   (Welf. & Inst.Code, § 790 et seq.) ¹  We conclude that appellant is entitled to the requested relief.  (See In re Luis B. (2006) 142 Cal.App.4th 1117 [because both the prosecution and the juvenile court failed to consider the minor's eligibility for DEJ, the juvenile wardship orders were vacated and the matter remanded for consideration of his DEJ eligibility] (Luis B.).)

BACKGROUND

According to the juvenile wardship petition, appellant allegedly attempted on December 13, 2010, to remove a police officer's firearm in violation of Penal Code section 148, subdivision (d), a felony, and allegedly committed a battery against the same officer in violation of Penal Code section 243, subdivision (d), a misdemeanor.²

At appellant's contested adjudication hearing on January 5, 2011, the juvenile court found the allegations to be true and sustained the petition.   The juvenile court declared appellant a ward of the court and placed him at home on probation.

Appellant filed a timely notice of appeal from the adjudication and disposition orders of January 5, 2011. (§ 800.)   Among the issues raised in the opening brief, the dispositive issue is the failure of both the prosecution and the juvenile court to consider appellant's suitability for the DEJ program.   The Attorney General concedes that where, as here, a minor is eligible for the DEJ program and neither the prosecution nor the juvenile court considered his suitability for the program, the case must be remanded.

DISCUSSION

As explained in Luis B., “ ‘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.)”  (Luis B., supra, 142 Cal.App.4th at pp. 1121–1122.)

I. DEJ Procedures

In order to be eligible for the DEJ program, all of the following must apply:  “(1) The child is 14 years or older at the time of the hearing on the application for deferred entry of judgment;  [¶] (2) The offense alleged is not listed in section 707(b);  [¶] (3) The child has not been previously declared a ward of the court based on the commission of a felony offense;  [¶] (4) The child has not been previously committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice;  [¶] (5) If the child is presently or was previously a ward of the court, probation has not been revoked before completion;  and [¶] (6) The child meets the eligibility standards stated in Penal Code section 1203.06” for probation.  (Cal. Rules of Court, rule 5.800(a).) ³

Before the prosecution may file a juvenile petition that alleges a felony offense, the prosecuting attorney must determine whether the minor is eligible for the DEJ program.  (Luis B., supra, 142 Cal.App.4th at p. 1123.)  “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 [rule 5.800](a) are met.   If the prosecuting attorney's review reveals that the requirements of (a) have been met, the prosecuting attorney must file Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV–750) with the petition.”  (Rule 5.800(b)(1).)

“If the court determines that the child is eligible and suitable for a deferred entry of judgment, and would derive benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment.”   (Rule 5.800(b)(2).)

Under appropriate circumstances, the court may grant DEJ to the minor summarily.  (Rule 5.800(d)(2).)   In all other cases, the court conducts 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).)

“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.]”  (Luis B., supra, 142 Cal.App.4th at p. 1123.)

II. The Procedures Were Not Followed in This Case

Here, as in Luis B., neither the prosecution nor the juvenile court considered appellant's eligibility for the DEJ program.   Although the clerk's transcript contains a blank “Determination of Eligibility” form JV–750, the unmarked boxes fail to indicate that the prosecution evaluated appellant's eligibility.   Accordingly, appellant correctly contends that “the record on appeal contains no evidence that the prosecution conducted the mandated evaluation of appellant's eligibility for the [DEJ] program or that appellant was sent, or received, the required DEJ eligibility notice.   Thus, the juvenile court never determined whether appellant was suitable for DEJ.”

The Attorney General concedes that “appellant was statutorily eligible for DEJ and the prosecutor failed to make a determination as to his eligibility, thus depriving the juvenile court of the opportunity to assess his suitability.”   The Attorney General states that under Luis B., “the adjudication and disposition [orders] must be vacated and the matter remanded to the juvenile court” for a determination of appellant's suitability for the DEJ program.

We thus conclude that as stated in Luis B., “the prosecuting attorney did not satisfy the statutory requirements to determine eligibility and provide notice, and the trial court failed to conduct the necessary inquiry and exercise discretion to determine whether defendant will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment.   Therefore, error was committed.”  (Luis B., supra, 142 Cal.App.4th at p. 1123.)   In light of the error, the findings and dispositional orders must be vacated and the case remanded for further proceedings in compliance with section 790 et seq. and rule 5.800.   Because the adjudication and disposition orders are vacated, we do not reach the remaining issues raised by appellant.

DISPOSITION

The adjudication and disposition orders of January 5, 2011, are vacated.   The case is remanded to the juvenile court for further proceedings in compliance with section 790 et seq. and rule 5.800.   If the juvenile court grants DEJ to appellant, the adjudication and disposition orders of January 5, 2011, will remain vacated.   If the juvenile court denies DEJ to appellant, it shall reinstate the adjudication and disposition orders of January 5,

2011, subject to appellant's right to have the denial of DEJ and the findings and orders reviewed on appeal.  (See Luis B., supra, 142 Cal.App.4th at pp. 1123–1124.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Welfare and Institutions Code..  FN1. All further undesignated statutory references are to the Welfare and Institutions Code.

FN2. A third misdemeanor count, resisting or obstructing a peace officer in violation of Penal Code section 148, subdivision (a)(1), was dismissed by the juvenile court..  FN2. A third misdemeanor count, resisting or obstructing a peace officer in violation of Penal Code section 148, subdivision (a)(1), was dismissed by the juvenile court.

FN3. All further rule references are to the California Rules of Court..  FN3. All further rule references are to the California Rules of Court.

EPSTEIN, P. J. MANELLA, J.