Filed 4/24/14 In re M.W. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re M.W., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139076
v.
M.W.,                                                                (Solano County
                                                                     Super. Ct. No. J41971)
         Defendant and Appellant.


                                                INTRODUCTION
         This timely appeal from orders of the juvenile court adjudging the minor a ward of
the court and placing him on probation raises one issue: Does a minor remain eligible for
deferred entry of judgment (DEJ) under Welfare and Institutions Code section 790 et
seq.1 after he agrees to a negotiated disposition that results in his admission to one count
of a multicount petition and dismissal of the remaining counts? In In re Joshua S. (2011)
192 Cal.App.4th 670, Division Two of this Court answered that question affirmatively.
We agree with that decision. We therefore reverse the juvenile court’s jurisdiction and
dispositional orders and remand to the juvenile court for further proceedings to determine
whether defendant is suitable for DEJ treatment. If the juvenile court grants the minor

1
 Unless otherwise indicated, all statutory references are to the Welfare and Institutions
Code.


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DEJ, the orders will remain vacated. If the juvenile court denies DEJ, it shall reinstate
the jurisdiction and disposition orders, subject to the minor’s right to review of the denial
on appeal.
                     FACTUAL AND PROCEDURAL SUMMARY2
        The minor, a resident of the city of Vallejo in Solano County, was sent by his
mother to live with relatives in Sacramento for his safety.
        On April 12, 2013, police officers were patrolling an area of Sacramento known
for robberies and assaults at approximately 9:30 p.m. when they saw the minor and
another man, who had been sitting at a bus stop, quickly get up and walk away. The
officers made contact with the two men. The minor appeared to be nervous. Informed he
was about to be patted down for weapons, the minor raised his arms and began walking
backwards. The officer reached forward and felt a hard metal object concealed under the
minor’s jacket. The object was a .22-caliber revolver loaded with nine live rounds. The
serial numbers on the gun appeared to have been deliberately removed.
        On April 16, 2013, the Sacramento County District Attorney filed a five-count
delinquency petition (§ 602) alleging that M.W., a minor, carried and possessed on his
person a concealable firearm (Pen. Code, §§ 25400, subd. (a)(2), count one; 29610, count
four), loaded and in a public place (Pen. Code, § 25850, subd. (a), count two), from
which identification markings had been removed. (Pen. Code, § 23900, count three.) The
petition also alleged the minor possessed live ammunition. (Pen. Code, § 29650, count
five.) The petition was accompanied by a determination of eligibility for DEJ signed by
the prosecuting district attorney, along with a DEJ citation and notice. At the next day’s
detention hearing, the juvenile court found the minor eligible for DEJ and continued the
matter for a combined DEJ-suitability and settlement conference hearing.




2
    The facts are drawn from the probation officer’s intake report.

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       On April 29, 2013, pursuant to a negotiated disposition, the minor admitted count
one and the remaining counts were dismissed. The court declared the offense a felony.
The court determined the minor was no longer DEJ-eligible “since he did not plead . . . to
all of the charges alleged.” The court transferred the matter to the minor’s county of
residence, Solano County, for disposition.
       At a May 22, 2013 initial disposition hearing in Solano County Juvenile Court, the
minor argued he was eligible for DEJ despite his plea bargain, citing In re Joshua S.,
supra, 192 Cal.App.4th 670. The Solano County Juvenile Court declined to review the
Sacramento County Juvenile Court’s determination of DEJ-ineligibility, indicating that
it’s practice was to disallow DEJ unless the minor “pleads to the sheet.” Following a
contested dispositional hearing on May 28, 2013, the court established wardship and
placed the minor at New Foundations as a condition of probation.
                                      DISCUSSION
       Minor M.W. contends, and the Attorney General concedes, under the reasoning of
In re Joshua S., supra, 192 Cal.App.4th 670, it was error for the juvenile court to deem
the minor ineligible for DEJ because he admitted one but not all of the charges included
in the original petition. The Attorney General asks us to hold In re Joshua S. was
wrongly decided. We decline to do so. In our view, Joshua S.’s construction of section
790 et seq. implements the legislative intent animating the DEJ scheme.
  “ ‘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 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,

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and any records of the juvenile court proceeding are sealed. (§§ 791, subd. (a)(3), 793,
subd. (c).)’ ” (In re Kenneth J. (2008) 158 Cal.App.4th 973, 976.) The procedures for
considering DEJ reflect a “ ‘strong preference for rehabilitation of first-time nonviolent
juvenile offenders’ ” (In re A.I. (2009) 176 Cal.App.4th 1426, 1434) and limit the court's
power to deny DEJ such that denial of DEJ to an eligible minor who wants to participate
is proper only when the juvenile court finds that “ ‘the minor would not benefit from
education, treatment and rehabilitation.’ [Citation.]” (Ibid.)
   “ ‘Section 790 makes a minor eligible for DEJ if all the following circumstances exist:
[¶] “(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.” (§ 790, subd. (a)(1)-(6).)’ ” (In
re Kenneth J., supra, 158 Cal.App.4th at pp. 976-977, fn. omitted; see also Cal. Rules of
Court, rule 5.800(a).)
       “The DEJ statutes ‘empower the court, under specified conditions, and upon the
minor's admission of the allegations of the petition, to place the minor on probation
without adjudging him or her to be a ward of the court.’ [Citation.] Under appropriate
circumstances, the court may summarily grant DEJ to the minor. [Citations.] If the court
does not summarily grant DEJ, it must conduct 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.’ [Citation.] It is the mandatory duty of the juvenile court to either grant
DEJ summarily or examine the record, conduct a hearing, and determine whether the
minor is suitable for DEJ, based upon whether the minor will derive benefit from

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‘education, treatment, and rehabilitation.’ [Citations.]” (In re D. L. (2012) 206
Cal.App.4th 1240, 1243-1244, fn. omitted.)
       In In re Joshua S., supra, 192 Cal.App.4th 670, the Attorney General argued, as
she does here, “that appellant should not be permitted to negotiate a plea agreement
reducing his legal responsibility for his offenses and still be considered for DEJ because
permitting this result would remove minor[s’] incentive to ‘expedite the process by a full
admission of responsibility.’ ” (Id. at p. 681.) In that case, the minor litigated a
suppression motion before entering into a plea bargain that allowed him to admit some
but not all of the “initially charged offenses.” (Ibid.) Critically, however, the minor did
not contest jurisdiction. The Joshua S. court reasoned: “In requiring a minor to ‘admit[]
each allegation contained in the petition,’ section 791, subdivision (a)(3), does not
specify that the petition cannot be amended where, as here, the amendment does not
follow and is not the consequence of the minor contesting one or more of the allegations
of the initial petition. [Citation.] The circumstances of this case are consistent with the
goal of expediting juvenile wardship proceedings and avoiding contested jurisdictional
hearings. Further, making DEJ unavailable to a minor who admits an amended petition
without contesting the allegations of the initial petition would not serve the goal of
increasing rehabilitation for first-time nonviolent juvenile offenders reflected in the
Findings and Declarations section, subdivision (j) of Proposition 21. [Citations.]” (Ibid.)
       In the case before us, the minor did not contest jurisdiction and the prosecuting
district attorney filed the appropriate forms finding the minor eligible for DEJ. For the
reasons stated in In re Joshua S., supra, 192 Cal.App.4th 670, the minor’s negotiation of
a plea agreement with the prosecuting attorney, in which he admitted one count of the
petition and the remaining counts were dismissed, did not make him ineligible for DEJ.
We find the court’s refusal to hold a DEJ suitability hearing upon the prosecuting
attorney’s determination of the minor’s eligibility for DEJ in this case was error. The
proper remedy is to reverse the court’s jurisdiction and dispositional orders and remand

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the matter to the juvenile court with directions to hold a suitability hearing in accordance
with section 790 et seq. and rule 5.800 of the California Rules of Court.
                                      DISPOSITION
       The orders are reversed and the matter is remanded for the trial court to determine
whether appellant should be granted deferred entry of judgment. If the juvenile court
grants the minor DEJ, the orders will remain vacated. If the juvenile court denies DEJ, it
shall reinstate the jurisdiction and disposition orders, subject to the minor’s right to
review of the denial on appeal. (In re D.L., supra, 206 Cal.App.4th at pp. 1245-1246.)




                                                   _________________________
                                                   Dondero, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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