>In re M.S.



















Filed 3/22/13 In re M.S. CA5

















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA

FIFTH APPELLATE DISTRICT




>

In re M.S., JR., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. M.S., JR., Defendant and Appellant.	F065293 (Super. Ct. No. JL003206) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of Merced County. David W. Moranda, Judge.

Kendall
Simsarian, 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, Catherine Chatman and John W.
Powell, Deputy Attorneys General, for Plaintiff and Respondent.



>-ooOoo-

On November
5, 2009, the Merced County District Attorney filed a juvenile wardship petition
(Welf. & Inst. Code, § 602)href="#_ftn2"
name="_ftnref2" title="">^[1] alleging that appellant, M.S., Jr., a minor, committed
three counts of felony vandalism (Pen. Code, § 594, subd. (a)(1)) and one count
of resisting, delaying or obstructing a peace officer (Pen. Code, § 148,
subd. (a)(1)), a misdemeanor. On
December 9, 2009, appellant admitted the allegations of the petition. On January 6, 2010, the court granted
appellant deferred entry of judgment (DEJ) (§ 790 et seq.) and set a “deferred
entry of judgment review” hearing for January 5, 2011.

By
memorandum dated December 27, 2010, the Merced County Probation Department
(Probation Department) informed the juvenile court that appellant had been
arrested on vandalism charges and had thereby “picked up an Adult Case,” and
recommended that appellant’s DEJ be extended “until there is a finding in the
Adult Court case.” On January 5, 2011,
the court, noting in its written order “ADULT MATTER PENDING,” ordered DEJ
extended to April 6, 2011, and set a review hearing for that date. Thereafter, the court extended appellant’s
DEJ four more times.

In a
memorandum dated June 7, 2012, submitted to the juvenile court, the Probation
Department stated the following:
Appellant’s adult criminal case was not yet resolved—it was set for
trial—but appellant had paid the previously ordered restitution in full, had
completed the previously ordered 96 hours of community service, and “appears to
have done well on [DEJ] in that he is attending college and working full
time.” It was “recommended [>sic] that [appellant] has successfully
completed [DEJ].”

In court on
June 8, 2012, the juvenile court ordered DEJ “lift[ed]” and adjudged appellant
a ward of the court. The court then
immediately terminated appellant’s wardship.


On appeal,
appellant contends the court erred in lifting DEJ and adjudging him a ward of
the court. He bases this contention, in
turn, on claims that the statute that provides for lifting of DEJ is
unconstitutionally vague, the procedure set forth in the DEJ statutory scheme
for lifting DEJ violates due process principles, the evidence was insufficient
to support the lifting of DEJ, and that in lifting DEJ the court failed to
comply with various provisions of the California Rules of Court.href="#_ftn3" name="_ftnref3" title="">^[2] The People concede that the court failed to
comply with lifting-of-DEJ procedures set forth in the rules of court, and that
therefore this court should vacate the judgment and remand the matter to the
juvenile court with an instruction to dismiss the November 2009 wardship
petition. Appellant, in a letter
submitted in lieu of a reply brief, agrees with the People’s proposed disposition
of the appeal. We accept the People’s
concession. Accordingly, we reverse and
direct the juvenile court to dismiss the instant wardship petition.

DISCUSSION

Legal Background

The DEJ provisions have been
explained as follows: “The DEJ
provisions of sections 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.)

Section 793, subdivision (a)
(section 793(a)) sets forth the consequences of a minor’s failure to comply
with the conditions of the DEJ: “If it
appears to the prosecuting attorney, the court, or the probation department
that the minor is not performing satisfactorily in the assigned program or is
not complying with the terms of the minor’s probation, or that the minor is not
benefiting from education, treatment, or rehabilitation, the court shall lift the
deferred entry of judgment and schedule a dispositional hearing.” (§ 793(a).)

In addition, the court must
terminate DEJ and set the matter for a disposition hearing if the minor “is
convicted of, or declared to be a person described in Section 602 for the
commission of” one felony or two separate misdemeanors during the DEJ
period. (§ 793(a).)

Rule 5.800(h) provides for “a
hearing … to determine if the deferred entry of judgment should be
lifted .…” (Rule
5.800(h)(2)(A).) At such hearing, “the
court must follow the procedure stated in rule 5.580(d) and (e) .…” (Ibid.) Accordingly, at such hearing the parties must
be allowed to present “relevant and material evidence .…” (Rule 5.580(e).) In addition, a disposition hearing must be
“conducted thereafter.”
(Rule 5.800(h)(2)(A).) “The
disposition hearing must be conducted as stated in rules 5.785 through
5.795.” (Rule 5.800(h)(2)(B).) The applicable rules require, inter alia,
that the minor be allowed to present relevant evidence. (Rule 5.785(b).)

Factual and Procedural Background

Near the outset of the June 8,
2012, hearing, the court noted that appellant’s criminal case was not resolved
and stated it would once again extend DEJ.
At that point the deputy district attorney (DDA) pointed out that
appellant would turn 21 years of age “in a couple of weeks.”href="#_ftn4" name="_ftnref4" title="">^[3] The court observed that at that point the
juvenile court would lose jurisdiction, and invited comment from the DDA, who
responded as follows: Appellant had two
pending adult criminal cases. “There is
at least probable cause to believe he committed these offenses .…” The DDA had “scanned through” the police
report on one of those cases and had concluded that “there is sufficient
evidence for him to be convicted at trial .…”

The court stated that by virtue of
the fact the criminal matters were set for trial, “there has been a
determination of probable cause”; “[w]e don’t have to have beyond a reasonable
doubt to lift somebody’s DEJ”; and “the question is should I lift his DEJ because of the probability that he committed
these new crimes[?]” After hearing
further argument, the court stated:
“Well, there has been a finding of probable cause. My feeling is that the DEJ should be lifted
and that he should become a ward of the court, immediately terminate the
wardship.” If appellant was eventually
acquitted in adult court, the court explained, “then at that point I would go
ahead and reverse my ruling and terminate his DEJ and go ahead and take back
the finding of wardship.” Shortly
thereafter, the court ruled that there had been a “finding of probable cause on
the two vandalism charges that are currently pending in adult court that
occurred during his period of DEJ, [and] for that reason I am lifting his DEJ
and I’m making him a ward of the Court.”
The court then immediately terminated appellant’s wardship.

>Analysis

For
several reasons, all of which the People acknowledge, the judgment must be
reversed. First, as indicated above, DEJ
may be terminated only if a minor suffers convictions and/or adjudications as
set forth in section 793(a) or if the court finds the “minor is not performing
satisfactorily in the assigned program or is not complying with the terms of
the minor’s probation, or that the minor is not benefiting from education, treatment,
or rehabilitation .…” (§
793(a).) Here, as also indicated above,
appellant had suffered no adult convictions or juvenile adjudications during
his DEJ period and the court did not make any of the required findings
regarding appellant’s performance on DEJ probation. Rather, as the People state, “it appears that
the court’s decision to lift DEJ was based on the unresolved charges rather
than a finding that appellant had failed to comply with the conditions of his
DEJ.”

Second, as
the People also state, in violation of rules of court regarding the conduct of
the hearing (rules 5.800(h)(2)(B), 5.785(b)), “Appellant was not given the
opportunity to dispute the unresolved adult charges or present evidence
establishing his compliance with the terms and conditions of his DEJ.”

Finally,
and again as the People state, the court adjudged appellant a ward of the court
during the DEJ review hearing, and thus, in violation of rule 5.800(h)(2)(A)
“did not schedule a separate disposition hearing and it did not give the
parties an opportunity to present evidence on the matter.”

Based on
the forgoing, the judgment must be reversed.
Moreover, because appellant turned 21 years of age on June 18, 2012, the
juvenile court no longer has jurisdiction except to enter an order dismissing
the petition. (See § 607; >In re Arthur N. (1976) 16 Cal.3d 226,
241, disapproved on other grounds in In
re Eddie M. (2003) 31 Cal.4th 480, 507-508.) We will remand the matter for that
purpose. Return of appellant to the
juvenile court for further proceedings is unnecessary. (In re
Arthur N., at p. 241.)href="#_ftn5" name="_ftnref5" title="">^[4]

DISPOSITION

The
judgment is reversed. The matter is
remanded to the juvenile court. On
remand, the court is directed to dismiss the instant wardship petition filed
November 5, 2009.