In re Bryan C.
Filed 11/12/13 In re Bryan C. CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
In re BRYAN C., a
Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
BRYAN C.,
Defendant and Appellant.
A138290
(
Super.
Bryan
C. (appellant) appeals from a judgment declaring him a ward of the juvenile
court and placing him on probation with home supervision after he pled no
contest to an allegation he had carried a concealed firearm on his person. (Welf. & Inst. Code, § 602; Pen.
Code, § 25400, subd. (a)(2); Cal. Rules of Ct., rule 5.778(e).)
hearing on his suitability for deferred entry of judgment (DEJ) under section
790 et seq., and further argues the failure to follow the statutory procedures
for determining his suitability deprived him of
remanded so the court can comply with the statutory requirements for
determining suitability. We remand the
case for this purpose.
FACTS AND PROCEDURAL HISTORY
On
November 1, 2012, appellant
was contacted by officers of the Antioch Police Department after he was
reported to have been showing off a gun in a restroom of his high school. No weapons were found when appellant was
searched, but the principal of the school told the officers appellant had
passed his backpack to another student.
That student was detained, and an unloaded .22-caliber revolver was
found in the backpack he was carrying.
After appellant was read his rights under Miranda v. Arizona (1966) 384 U.S.
436, he explained he was having problems with a Norteño gang member and had
been beaten up in September 2012.
Appellant said he was not a Sureño, though some of his friends were.
A
wardship petition was filed under section 602 alleging appellant had committed
two felony offenses: possessing a firearm in a school zone in violation of
Penal Code section 626.9, subdivision (b), and carrying a concealed firearm on
his person in violation of Penal Code section 25400, subdivision (a)(2). The district attorney’s office filed a JV‑150
form stating appellant was eligible for DEJ.
It does not appear either appellant or his parents were served with any
notice regarding his eligibility for DEJ or the details of the DEJ procedure.
At
the arraignment on the petition, defense
counsel noted appellant was eligible for DEJ and asked the court to refer
him for a determination of suitability.
The court declined to do so, noting appellant “had a gun,†and “I think
we need far more resources than are available under DEJ.†Appellant subsequently pled no contest to the
concealed firearm count and was placed on probation with 120 days of home
supervision with electric monitoring and 12 weekends at juvenile hall.
DISCUSSION
Under
the DEJ provisions of section 790 et seq., “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
(Martha C. v. Superior Court
(2003) 108 Cal.App.4th 556, 558 (Martha
C.).)
A
minor is eligible for DEJ if 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.â€
(§ 790, subd. (a).) When the
prosecuting attorney has determined the minor eligible for DEJ, he or she must
file a “Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form
JV-750)†along with the juvenile petition.
(Rule 5.800(b)(1), italics omitted.)
The court must then issue a “Citation and Written Notification for
Deferred Entry of Judgment—Juvenile (form JV-751)†to the minor’s custodial
parent, guardian or foster parent. (Rule
5.800(c), italics omitted; see § 792.)
Once
a minor has been determined eligible
for DEJ, the juvenile court has the ultimate discretion to rule on the
program. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (
child’s “age, maturity, educational background, family relationships, demonstrable
motivation, treatment history, if any, and other mitigating and aggravating
factors in determining whether the minor is a person who would be benefitted by
education, treatment, or rehabilitation.â€
(§ 791, subd. (b); rule 5.800(d)(3).) If the minor waives his or her right to a
speedy jurisdictional hearing, the court may either grant DEJ summarily, or, if
it does not do so, must hold a hearing to determine suitability based on the
statutory factors. (Luis B., at p. 1123; § 791, subd. (b); rule 5.800(b)(2).)
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).)
While
the court is not required to grant DEJ to an eligible minor, it is required to
“follow specified procedures and exercise discretion to reach a final
determination once the mandatory threshold eligibility determination [has been]
made.†(Luis B., supra, 142
Cal.App.4th at p. 1123; see also In re
D.L. (2012) 206 Cal.App.4th 1240, 1243-1244.) Here, appellant was eligible for DEJ. The district attorney filed a JV-750 form
recognizing as much, but the court did not set a suitability hearing and did
not provide appellant with a “notice reasonably calculated to apprise him of
the pendency of the matter and an opportunity to present his evidence and
objections.†(In re D.L., at p. 1245.) A
blank form JV-751 was attached to the JV-750 form, but there is no indication
it was served on appellant or his parents and, in any event, it specified no
hearing date. The court’s brief
consideration of the issue at arraignment, which did not take into account the
statutory guidelines, did not comport with due process and amounted to an abuse
of discretion. (Ibid.; In re C.W. (2012)
208 Cal.App.4th 654, 660-663; Martha C.,
supra, 108 Cal.App.4th at p. 562.)
We
therefore accept the Attorney General’s concession the case must be remanded so
the court can comply with the procedures required by section 790 et seq. We express no opinion whether appellant
should be found suitable for DEJ; that is a matter for the sound discretion of
the juvenile court after considering the statutory factors. (In re
Sergio R. (2003) 106 Cal.App.4th 597, 607.)
DISPOSITION
The
juvenile court’s adjudication and dispositional orders are vacated and the
matter is remanded for further proceedings in compliance with section 790 et
seq. and rule 5.800, including notice to appellant of his eligibility for DEJ. If, as a result of those proceedings,
appellant elects DEJ, the juvenile court shall exercise its discretion
regarding whether or not to grant DEJ.
If the juvenile court grants DEJ to appellant, the adjudication and
dispositional orders will remain vacated.
If it denies DEJ to appellant, the juvenile court shall reinstate the
adjudication and dispositional orders, subject to appellant’s right to have the
denial of DEJ reviewed on appeal. (See
NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
Welfare and Institutions Code unless otherwise indicated. Further rule references are to the California
Rules of Court.
underlying facts in this case are taken from the probation report prepared for
the dispositional hearing.
