G.
Filed 2/28/13 In re Ricky G. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 RICKY G., a Person Coming Under The
Juvenile Court Law.
THE PEOPLE,
Plaintiff
and Respondent,
v.
RICKY G.,
Defendant
and Appellant.
F065352
(Super. Ct. No. JW123121-01)
THE COURT
APPEAL from
a judgment of the Superior Court of
Courtney M.
Selan, 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, Senior Assistant Attorney General, Michael A. Canzoneri and
Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On May 15,
2012, a petition was filed pursuant to Welfare and Institutions Code section
602
committed a felony, attempted carjacking
(Pen. Code, §§ 664 & 215). The
petition also alleged that appellant’s offense was a serious felony. The prosecutor filed a JV-750 form setting
forth a determination that appellant was ineligible for Deferred Entry of
Judgment (DEJ). All of the boxes
indicating appellant was eligible for DEJ were otherwise checked. The prosecutor did not attach the JV-751 form
giving appellant written notification and a full description of the procedures
for DEJ as required by section 791, subdivision (a).
Appellant contends, and respondent
concedes, that attempted carjacking is not an enumerated offense in section
707, subdivision (b) (hereafter section 707(b)) and that he was eligible for
DEJ. Because appellant was not properly
notified of his eligibility for DEJ, the parties also agree that this case must
be reversed and remanded for further proceedings. We agree with the parties.
FACTS AND PROCEEDINGS
Appellant
appeared before the juvenile court four times in 2012 prior to the jurisdiction
hearing: May 16, May 29, June 14, and
June 29.
in the jurisdiction hearing that included appellant’s codefendant, Adan L. Guillermina Villagomez testified that on May
13, she was inside her home watching television when her husband asked her if
her car was locked. Guillermina’s
husband asked her to move her car from the street to the driveway. As Guillermina was getting her keys, she saw
a girl standing near her car.
Guillermina entered the car to move it and started the engine. Guillermina looked up and saw the girl in
front of the car and three guys walking up to the side. The three boys met the girl in a triangle
shape in front of Guillermina’s car and started yelling and cursing at
her.
As Guillermina turned on her
engine, Adan L. came toward her and stood in front of her on the left side, or
driver’s side, of her car. Adan L.
opened Guillermina’s door and hit her twice in the face with his fist. At first, Guillermina was in shock. Adan L. kicked the car door and ordered
Guillermina out of the car. Guillermina
pressed down on the car horn. Appellant
was standing in front of Guillermina’s car, blocking her path back into her
home. The boys, including appellant,
were asking Guillermina in English where she was from and cursing at her.
Guillermina saw her family running
toward her. The boys separated
themselves a bit from Guillermina’s car and she took a right turn and drove
faster than the speed limit to get the attention of a police officer. Guillermina found a California Highway Patrol
Officer in a parking lot and reported to him that someone had just hit her and
tried to rob her. Guillermina believed
Adan L. was trying to pull her out of her car.
Guillermina’s son, D.V., went
outside and approached the young men who were surrounding his mother’s
car. The three young men, including
appellant, rushed at D.V. and attacked him.
According to D.V., the boys and the girl all smelled like alcohol. While one boy hit D.V., appellant tried to
grab him. D.V. pushed off appellant, hit
him, and ran away. D.V.’s sister, I.R.,
witnessed the incident and recognized appellant from school. A deputy from the Kern County Sheriff’s
Department later arrested appellant.
Appellant had scratches on his elbows, hands, and shoulder.
At the conclusion of the
found the allegation against appellant to be true. The disposition hearing was conducted on July
16, 2012. The court committed appellant
to Camp Erwin Owen.
Appellant argues, and the People
concede, he met the DEJ eligibility requirements and the juvenile court abused
its discretion in failing to consider whether he was suitable for DEJ. We begin our analysis by first seeing whether
attempted carjacking is a disqualifying offense for DEJ. We conclude that it is not. We then focus our analysis on whether the
prosecutor and juvenile court complied with DEJ procedures and find that they
failed to do so.
Section 707(b) Offenses
To be eligible for DEJ, a minor
cannot commit a section 707(b) offense.
(§ 790, subd. (a)(2).)
Enumerated section 707(b) offenses include offenses in which a firearm
is used (§ 707(b)(17)), violent felonies as defined in Penal Code section
667.5, subdivision (c) which also constitute a violation of Penal Code section 186.22,
subdivision (b) (§ 707(b)(21)), and carjacking (§ 707(b)(25)). With the exception of attempted murder,
section 707(b) does not list any other attempted felonies. Penal Code section 667.5, subdivision (c)
also lists carjacking as a violent felony (Pen. Code, § 667.5, subd.
(c)(17)), but does not include attempted carjacking or any other attempted
offense.
are not subject to its provisions. (
Cal.App.3d 417, 421 [adjudication for attempted robbery not subject to
provisions of section 707(b)].)
There was no evidence in the record
that appellant or any other coperpetrator used a gun or other weapon in the
course of the attempted carjacking.
There was also no allegation or evidence that the offense was for the
benefit of criminal street gang. We
conclude that attempted carjacking is not a section 707(b) offense and that
appellant is not disqualified from DEJ if he admits the offense.
DEJ Procedures
Under the DEJ provisions of Welfare
and Institutions Code section 790 et seq., a minor may admit the allegations
contained in a section 602 petition in lieu of jurisdiction and disposition
hearings and waive time for the pronouncement of judgment. Entry of judgment is then 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
juvenile court proceeding are sealed.
(§§ 791, subd. (a)(3); 793, subd. (c).)
(Martha C.
Court (2003) 108 Cal.App.4th 556, 558.)
The
determination of whether to grant DEJ requires consideration of two distinct
and essential elements of DEJ, “eligibility†and “suitability.†(In re
Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) Once the threshold determination of
eligibility is made, the juvenile trial court has the ultimate discretion to
rule on the minor’s suitability for DEJ.
(In re Luis B. (2006) 142
Cal.App.4th 1117, 1123 (Luis B.).)
The eligibility requirements for
DEJ are set forth in section 790, which provides that a minor is eligible for
DEJ if he or she is accused in a juvenile wardship proceeding of committing a
felony offense and all of the six circumstances apply.
discretion after consideration of the factors specified by statute and rule of
court, and based upon the standard of whether the minor will derive benefit
from treatment, education and rehabilitation rather than a more restrictive
commitment. (Luis B., supra, 142
Cal.App.4th at p. 1123.)
It is the
prosecuting attorney’s duty to assess a minor’s eligibility for DEJ: “The prosecuting attorney shall review his or
her file to determine whether [the eligibility requirements set forth above]
apply.†(§ 790, subd. (b).) California Rules of Court, rule 5.800(b)
and specifies that the review must be performed “[b]efore filing a petition
alleging a felony offense, or as soon as possible after filing ....†(Rule 5.800(b)(1).)
Upon
determining that a minor is eligible for DEJ, the prosecuting attorney “shall
file a declaration in writing with the court or state for the record the
grounds upon which the determination is based, and shall make this information
available to the minor and his or her attorney.†(§ 790, subd. (b).) The form designed for this purpose is a
“Determination of Eligibility--Deferred Entry of Judgment--Juvenile (form
JV-750),†the completion of which requires the prosecutor to indicate findings
as to the eligibility requirements by checking, or not checking, corresponding
boxes. (Rule 5.800(b)(1).)
Rule 5.800(b)(1) directs the
prosecutor to file JV-750 “with the petition.â€
In addition, the prosecutor’s “written notification to the minor†of the
minor’s eligibility must include, inter alia, “[a] full description of the
procedures for deferred entry of judgment†(§ 791, subd. (a)(1)) and “[a] clear
statement that, in lieu of jurisdictional and disposition hearings, the court
may grant a deferred entry of judgment with respect to any offense charged in
the petition, provided that the minor admits each allegation contained in the
petition and waives time for the pronouncement of judgment….†(§ 791, subd.
(a)(3).)
Once the
prosecuting attorney determines the minor is eligible and the court, the
prosecuting attorney, and the minor’s attorney agree that the minor should
receive DEJ, the hearing on the issue of suitability shall proceed on an
expedited basis (rule 5.800(b)(1)). If
the court, the prosecuting attorney, and the minor’s attorney do not agree that
the minor should receive DEJ, the court may examine the record and make an
independent determination. (Rule
5.800(b)(2).) Section 791 further
provides that where it is determined the minor is eligible for DEJ, “If the
minor consents and waives his or her right to a speedy jurisdictional hearing,
the court may refer the case to the probation department or the court may
summarily grant deferred entry of judgment if the minor admits the charges in
the petition and waives time for the pronouncement of judgment.†(§ 791, subd. (b).)
Here, the
prosecutor filed a JV-750 form, but mistakenly stated that appellant was
ineligible for DEJ. All of the other
boxes indicating that appellant was otherwise eligible for DEJ were checked
except for the box that appellant was eligible for probation under Penal Code
section 1203.06. The prosecutor did not
attach and file a JV-751 form and failed to otherwise notify appellant of the
detailed advisements required by section 791, subdivisions (a)(1) through
(a)(6). Furthermore, the court failed to
notify appellant’s custodial parent of appellant’s eligibility for DEJ pursuant
to section 792. Appellant was charged
with a felony and the record reveals he meets each of the requirements set
forth in section 790, subdivisions (a)(1) through (a)(6).
All of the parties and the juvenile
court were apparently under the mistaken belief that the attempted carjacking
allegation was a section 707(b) offense.
It is not.
Two cases have held that when a
juvenile who has been properly notified of DEJ elects to proceed to a
jurisdiction hearing, challenging the truth of the allegations, that the
juvenile has waived DEJ as an option for resolution of his or her case. (In re
Usef S. (2008) 160 Cal.App.4th 276 (Usef
S.) and In re Kenneth J. (2008)
158 Cal.App.4th 973 (Kenneth J.).) In both of these cases, the prosecutor and
court complied with all of the DEJ requirements. (Usef S.,
supra, 160 Cal.App.4th at p. 281;
The instant
case is distinguishable from both Usef S.
and Kenneth J. Presumably, in those cases the minor was
advised by the prosecutor pursuant to section 791, subdivision (a)(3), that the
court could grant DEJ “provided … the minor admits each allegation contained in
the petition….†Thus, having been found
eligible for DEJ, both Usef S. and
chance to have the court consider their suitability for DEJ and proceeded to
jurisdiction hearings instead. Under
those circumstances it can fairly be said that denying the allegations of the
petition and proceeding to a jurisdictional hearing is tantamount to the
minor’s rejection of DEJ.
Here, in
contrast to Usef S. and
notified of his eligibility for DEJ and did not receive the section 791, subdivisions
(a)(1) through (a)(6), advisements, the same cannot be said. Indeed, the minor was incorrectly notified
that he was not eligible for DEJ. Here the minor was
the prosecutor and did not receive the section 791, subdivisions (a)(1) through
(a)(6), advisements. Unlike the minors
in Usef S. and Kenneth J., appellant did not effectively reject DEJ by proceeding
to an adjudication hearing because he was not given the option of selecting
DEJ.
Appellant did not receive written notification of the DEJ
procedures from either the prosecutor or the juvenile court as required by the
Welfare and Institutions Code. The
statutory scheme sets forth mandatory duties for both the prosecutor to give
proper notice and the juvenile court to also give proper notice and to conduct
the necessary inquiry.
contested jurisdiction hearing was not, under the facts of this case, a
meaningful election not to pursue DEJ.
The failure to follow DEJ procedures is reversible error. (Luis B.,
supra, 142 Cal.App.4th at p. 1123.) Under the circumstances
presented here, the court was required to determine whether appellant was
suitable for DEJ. We note that the court
still has discretion to determine whether or not appellant is suitable for DEJ
based on the relevant criteria after the proper advisements have been given.
DISPOSITION
The juvenile court’s orders are
reversed. The matter is remanded to the
juvenile court for the prosecutor and the juvenile court to comply with the
requirements of DEJ. The juvenile court
shall exercise its discretion to determine, in view of the requirements set
forth in Welfare and Institutions Code section 790 et seq. and California Rules
of Court, rule 5.800, whether appellant is suitable for a grant of
juvenile court shall thereafter conduct such further proceedings as are
necessary.
name="_ftn1" title="">* Before
Levy, A.P.J., Kane, J., Detjen, J.
name="_ftn2" title="">[1] Unless
otherwise indicated, all statutory references are to the Welfare and Institutions
Code.
