IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

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1 Filed 2/24/09 In re J.I. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re J.I., a Person Coming Under the Juvenile Court Law. THE PEOPLE, v. J.I., Plaintiff and Respondent, Defendant and Appellant. A (Sonoma County Super. Ct. No J) The minor, J.I., admitted the Welfare and Institutions Code section petition allegation that she received stolen property (Penal Code 496, subd. (a)), and was referred to probation for a report and recommendation regarding her suitability for a deferred entry of judgment (DEJ) pursuant to section 790 et seq. Upon receipt of the probation department s report and recommendation against granting DEJ, the juvenile court found the minor unsuitable for DEJ, ordered that the minor be made a ward of the court, and placed her in the home of her father (with additional days of home detention, among other conditions). The minor appeals, contending that the juvenile court did not have discretion to deny DEJ, as the district attorney s office had failed to comply with mandatory requirements of section 790 et seq. We disagree and affirm. 1 All further section references are to the Welfare and Institutions Code, unless otherwise indicated. 1

2 I. BACKGROUND The minor s younger brother was taking care of victim Carol Maloney s cats while the victim and her son were away for the weekend. Upon the Maloneys return, they noticed that two rings (valued at $2,000) and some cash were missing from their residence. The minor s mother, contacted by the police during their investigation, indicated that the minor s younger brother said that the minor was showing off the rings while at Alicia Park and may have been auctioning them off. When interviewed by the police, the minor claimed that she borrowed a ring from the victim s house, planning to return it, and that she lost it during a water balloon fight at Alicia Park. The rings were later recovered from a local jewelry store; a person named Michael Csito had sold the rings and a gold chain to the jeweler for $35. A section 602 petition, alleging that the minor received stolen property in violation of Penal Code section 496, subdivision (a), was filed in juvenile court. The minor admitted the allegations of the petition. Prior to her admission, the prosecutor indicated that his office, in the rush to file the petition, had failed to file the appropriate DEJ paperwork, but that the minor appeared to be eligible for DEJ. The court accepted the minor s admission and referred the matter to the probation department for preparation of a disposition and suitability for DEJ report. Based upon the minor s history and family situation, the probation department recommended against granting DEJ; the court followed that recommendation and denied DEJ. The juvenile court declared the minor to be a ward of the court, placed her in her father s home, and ordered her into the intensive supervision program. This timely appeal followed. II. DISCUSSION A. Failure of District Attorney to Comply With Mandates re: DEJ. The minor contends that the failure of the district attorney to comply with certain mandates regarding the DEJ program left the juvenile court without discretion to find her unsuitable for DEJ. We reject this contention. In juvenile cases, DEJ involves two determinations: eligibility and suitability. Section 790 provides in part that (a)... [T]his article shall apply whenever a case is 2

3 before the juvenile court for a determination of whether a minor is a person described in Section 602 because of the commission of a felony offense, 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 of the Penal Code. [ ] (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply. If the minor is found 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. Upon a finding that the minor is also suitable for [DEJ] and would benefit from education, treatment, and rehabilitation efforts, the court may grant [DEJ]. Under this procedure, the court may set the hearing for deferred entry of judgment at the initial appearance under Section 657. The court shall make findings on the record that a minor is appropriate for [DEJ] pursuant to this article in any case where [DEJ] is granted. ( 790, subds. (a) & (b).) In In re Luis B. (2006) 142 Cal.App.4th 1117 (Luis B.), the court explained the DEJ procedure. The DEJ provisions of section 790 et seq. were enacted as part of Proposition in March 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 3

4 sealed.... (Id. at pp , citing Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.) California Rules of Court, rule sets forth the procedures for consideration of whether DEJ should be granted. (b) Procedures for consideration ( 790) [ ] 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 [ 790, subd. (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. [ ] (1) If the court, the prosecuting attorney, and the child s attorney agree that the child should receive a [DEJ, the hearing under this rule must proceed on an expedited basis. [ ] (2) If the court, the prosecuting attorney, and the child s attorney do not agree that the child should receive a [DEJ], the court may examine the record and make an independent determination. If it is determined that the child should not receive a [DEJ], the case must proceed under chapter 14, articles 1 through 4, of this division. [ ] (c) Citation ( 792) [ ] The court must issue Citation and Written Notification for Deferred Entry of Judgment Juvenile (form JV-751) to the child s custodial parent, guardian, or foster parent. The form must be personally served on the custodial adult at least 24 hours before the time set for the appearance hearing. [ ] (d)... (2) If the child waives the right to a speedy disposition hearing, the court may summarily grant the [DEJ]. [ ] (3) When appropriate, the court may order the probation department to prepare a report with recommendations on the suitability of the child for [DEJ] or set a hearing on the matter, with or without the order to the probation department for a report. (Rule 5.800(b), (c) & (d), italics omitted.) The juvenile court then has the ultimate discretion to rule on the suitability of the minor for DEJ after consideration of the factors specified in section 791 and rule (Luis B., supra, 142 Cal.App.4th at p ) The juvenile court may grant DEJ to the minor summarily under appropriate circumstances..., and if not must conduct a hearing at which the court shall consider the declaration of the prosecuting attorney, any report 4

5 and recommendations from the probation department, and any other relevant material While the court retains discretion to deny DEJ to an eligible minor, the 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.... (Ibid., citing section 791, subd. (b), italics omitted.) 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.] (Ibid., italics added.) In the present case, the parties agree that the district attorney failed to strictly comply with the mandated procedures set forth in sections 790, subdivision (b) and 791, subdivision (a), and California Rules of Court, rule 5.800, subdivision (b). In sum, these sections and rule require that the district attorney determine whether the minor is eligible for DEJ and, if so, to file a written declaration with the juvenile court indicating the grounds upon which the determination was made, and make this information available to the minor and his attorney ( 790, subd. (b)), and to serve a written notification of eligibility on the minor, indicating fully a description of the procedures for deferred entry of judgment ( 791, subd. (a)). 2 The district attorney failed to file such a written declaration, but rather represented verbally in open court that the minor appeared to be eligible. The minor and her attorney did not object to this verbal representation, nor did they request that the district attorney state his reasons for that determination of eligibility, nor did they request that the district attorney file the written declaration mandated by the statute and rule Instead, the court and the minor accepted the district attorney s 2 Rule requires that the district attorney, after reviewing the minor s file regarding eligibility for DEJ, file a Determination of Eligibility Deferred Entry of Judgment Juvenile (form JV-750) with any section 602 petition which alleges a felony offense. Form JV-750 sets forth the factors contained in section 790, subdivision (a), for use in determining if the minor is eligible for DEJ. 5

6 preliminary determination of eligibility, the minor admitted the allegations of the section 602 petition, and the court proceeded to refer the matter to the probation department for review and recommendation regarding the minor s suitability for DEJ. Luis B., supra, 142 Cal.App.4th 1117, upon which the minor relies on appeal, involved a situation where the district attorney did not review the minor s eligibility for DEJ at all or make any recommendation regarding it, and where the juvenile court similarly failed to consider DEJ as an option for the minor. In the present case, however, the district attorney did make such an initial determination regarding the minor s eligibility, and the trial court fully complied with its mandates under section 790 et seq. to determine the minor s suitability for DEJ. The minor s lack of objection to this procedure may well have lulled the juvenile court into accepting the verbal representation of eligibility by the district attorney, rather than the court requiring written notice as contemplated by the statutes and Rules of Court. This error could easily have been rectified, had the minor objected, prior to the minor s admission of the allegations of the section 602 petition. We agree with respondent that the minor, by failing to object below, has forfeited her right to raise this issue on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, ) Even if the issue was not forfeited by the minor s failure to object below, prejudice from the prosecutor s failure to formally comply with sections 790, subdivision (b) and 791, subdivision (a), and rule has not been demonstrated. The minor, without citation to authority, maintains that the error is jurisdictional and responds to respondent s contention that no prejudice has been shown by arguing that the juvenile court lacked discretion to decide one way or the other whether [the minor] was suitable for DEJ. The minor then articulates her argument that the district attorney s failure to file a written declaration regarding her eligibility for DEJ prejudiced her because, The statement itself would have been significant it in effect would have shown [the minor] was a low-level offender, who had not previously been declared a ward of the court, was not charged with a section 707(b) offense, had not been committed to the Youth Authority, had not had probation revoked, and was eligible for probation. 6

7 ( 790, subd. (a)). The minor s argument demonstrates exactly why the failure of the district attorney to comply with the requirement of filing a written declaration is not prejudicial all of the information required to be included in the written declaration, articulated above by the minor, goes to the issue of the minor s eligibility, not her suitability, for DEJ. Further, all of this information was before the court in the probation officer s report, at the time the juvenile court made the determination of unsuitability. We fail to see how the lack of a written declaration from the district attorney detailing the same information could have or would have benefitted the minor; it was not the minor s eligibility for DEJ, but rather her suitability, that caused the juvenile court to determine not to grant the minor DEJ. In addressing the minor s suitability for DEJ, the probation officer indicated in his report that: It is felt that the minor s needs for supervision and support are well beyond the scope of DEOJ. She has also failed to take responsibility for her actions and has not expressed any remorse, even blaming the victim for a lack of cooperation when she called to apologize. The officer detailed the minor s on-going truancy (the subject of a previous section 601 petition), that she began smoking marijuana at age 12 and did so every other day, that both parents claimed the other had ongoing substance abuse issues, that the minor had been attending family and individual counseling over the years, and that the minor resumed taking an antidepressant when detained in juvenile hall. Based upon this history, the probation officer felt the minor s parents would benefit from assistance such as family coaching, anger management, and parenting classes. CPS records indicated that there were 13 referrals regarding the minor between 1999 and She was raped when she was 13, and her boyfriends were 27 and 24 years of age, both with criminal histories. At the disposition hearing, the probation officer indicated that the minor was stabilizing somewhat, but in her past here recently she has been out of control... with issues of truancy, use of marijuana, hanging out with older boys and men, run-aways from home.... [ ] There s a lot of family issues in the past with this young lady.... And she s had some run-aways from each parent.... The probation officer went on to 7

8 recommend intensive supervision and, with some hesitation due to her family history, placement in her father s home. The officer concluded, So we feel that regarding the issue of [DEJ], it s not appropriate. This young lady has too many issues to deal with on that program. The court then denied DEJ, finding the minor unsuitable due to her continuing status and delinquency issues, including her truancy and substance abuse, and anger issues. Given the recommendation from probation regarding the minor s suitability for DEJ, we fail to see how the failure of the district attorney to file a written statement regarding her eligibility for that program would have had any impact on the court s decision. 3 B. Failure of Juvenile Court to Determine if Wobbler Offense Felony or Misdemeanor. The minor also contends, and respondent concedes, that the juvenile court erred by failing to expressly exercise its discretion to determine if the wobbler offense that the minor admitted, a violation of Penal Code section 496, subdivision (a), was being designated a felony or a misdemeanor. The juvenile court failed to indicate whether this wobbler offense was being designated a felony or a misdemeanor, both at the time of the minor s admission, and at disposition. The case must therefore be remanded for that determination. ( 702; In re Manzy W. (1997) 14 Cal.4th 1199, ) 3 Respondent claims that the minor does not contend on appeal that the court abused its discretion in declining to find her suitable in light of the social study. Indeed the minor indicates in a footnote, If the court did have discretion to find [the minor] unsuitable for DEJ, it abused its discretion. However, the minor fails to develop this argument any further. Based upon the above information before the juvenile court regarding the minor s suitability for DEJ, we cannot say its decision finding unsuitability was an abuse of discretion, as its decision was not so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377; In re Sergio R. (2003) 106 Cal.App.4th 597, 607 [review of juvenile court s determination of suitability for DEJ for abuse of discretion].) 8

9 III. DISPOSITION The matter is remanded to the juvenile court for determination of whether the violation of Penal Code section 496, subdivision (a), admitted by the minor, is a misdemeanor or felony. In all other respects, the judgment is affirmed. Sepulveda, J. We concur: Reardon, Acting P.J. Rivera, J. 9