Filed 11/23/15; pub. order 12/10/15 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                               DIVISION ONE


In re TRENTON D., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
        Plaintiff and Respondent,
v.
TRENTON D.,                                                 A144070
        Defendant and Appellant.                            (Contra Costa County
                                                            Super. Ct. No. J13-00608)



        Appellant Trenton D. was adjudged a ward of the juvenile court and committed to
a rehabilitation facility for six months after the court sustained an allegation that he had
committed the offense of being a minor in possession of a firearm. Trenton does not
challenge the evidence supporting the court’s jurisdictional or dispositional findings, but
he contends that he received insufficient notice of his eligibility for a deferred entry of
judgment (DEJ). (Welf. & Inst. Code, § 790 et seq.)1 We agree and therefore reverse
and remand for further proceedings. We also correct the dispositional order to include an
additional three days of predisposition credit.



1
 All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
                                                        1
                                          I.
                                FACTUAL AND PROCEDURAL
                                     BACKGROUND
       These proceedings were initiated in July 2013 when a juvenile wardship petition
was filed under section 602 alleging that Trenton committed petty theft and other crimes.
Under a negotiated disposition, the juvenile court sustained amended misdemeanor
allegations that Trenton committed second degree commercial burglary (Pen. Code,
§§ 459, 460, subd. (b)), possessed a zip gun (id., §33600), and possessed ammunition
(id., § 29650); the remaining counts were dismissed. Trenton was adjudged a ward of the
court and placed on probation in his mother’s home.
       A supplemental wardship petition was filed in November 2014 alleging that
Trenton had committed one felony count of discharging a firearm with gross negligence.
Attachments to the petition show that the petition implicated the provisions of
section 790 et sequitur, part of “The Gang Violence and Juvenile Crime Prevention Act
of 1998” enacted with the adoption of Proposition 21 in March 2000. (Martha C. v.
Superior Court (2003) 108 Cal.App.4th 556, 558.) “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).)” (Ibid.)
       A juvenile is eligible for a DEJ if (1) the minor has not previously been adjudged a
ward of the court for the commission of a felony offense, (2) the charged offense is not
listed in section 707, subdivision (2), (3) the minor has not previously been committed to
the Department of Corrections and Rehabilitation, Division of Juvenile Facilities,
(4) probation has never been revoked for the minor without having been completed,
(5) the minor is at least 14 years old, (6) the minor is eligible for probation under Penal


                                              2
Code section 1203.06, and (7) the charged offense is not rape or other specified sexual
offenses. (§ 790, subd. (a).) The prosecuting attorney “shall” review the file to
determine whether the minor is eligible for a DEJ, and if the minor is found to be eligible,
inform the court and the minor of the “grounds upon which the determination is based”
(§ 790, subd. (b)) by filing Judicial Council form JV-750 (Determination of Eligibility—
Deferred Entry of Judgment—Juvenile). (Cal. Rules of Court, rule 5.800(b)(1).) It is
undisputed that Trenton was eligible for a DEJ and that the prosecuting attorney filed a
form JV-750.
         Under section 791, subdivision (a), the prosecuting attorney’s written notification
to the minor was required to include all of the following information:
         “(1) A full description of the procedures for deferred entry of judgment.
         “(2) A general explanation of the roles and authorities of the probation
department, the prosecuting attorney, the program, and the court in that process.
         “(3) 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, and that upon the successful completion
of the terms of probation . . . the court shall dismiss the charge or charges against the
minor.
         “(4) A clear statement that upon any failure of the minor to comply with the terms
of probation, . . . the prosecuting attorney or the probation department, or the court on its
own, may make a motion to the court for entry of judgment and the court shall render a
finding that the minor is a ward of the court pursuant to Section 602 for the offenses
specified in the original petition and shall schedule a dispositional hearing.
         “(5) An explanation of record retention and disposition resulting from
participation in the deferred entry of judgment program and the minor’s rights relative to
answering questions about his or her arrest and deferred entry of judgment following
successful completion of the program.


                                                3
       “(6) A statement that if the minor fails to comply with the terms of the program
and judgment is entered, the offense may serve as a basis for a finding of unfitness
pursuant to subdivision (d) of Section 707, if the minor commits two subsequent felony
offenses.”
       This information is preprinted on the second page of the two-page Judicial
Counsel form JV-751 (Citation and Written Notification for Deferred Entry of
Judgment—Juvenile).2 The record here, however, includes only the first page of the
form. This page includes standard language that “[t]he district attorney has determined
that this youth is eligible to be considered by the juvenile court for a deferred entry of
judgment on the offense or offenses alleged in the petition . . . .” Although Trenton’s
name and the case number were printed on the first page, no other information was
written in the spaces provided for additional information. Left blank are spaces
designated to include the names and addresses of the minor’s parents or guardians, and
for including information about a court hearing for the consideration of a DEJ.
       In addition to the incompleteness of form JV-751, there is no indication in the
record that it was properly served. California Rules of Court, rule 5.800(c) provides that
the court must issue form JV-751 to the child’s custodial parent, guardian, or foster
parent, and the form “must be personally served on the custodial adult at least 24 hours
before the time set for the appearance hearing.”
       The day after the supplemental petition was filed, Trenton appeared for an
arraignment, where he was represented by counsel and accompanied by his mother. The
juvenile court asked Trenton’s lawyer if she had received her “packet” for the hearing,
and the attorney responded that she had. The attorney waived a formal reading and
advisement of rights and entered a plea of not guilty. The court ordered Trenton detained

2
  On the court’s own motion, we take judicial notice of form JV-751, available on the
judicial branch’s website. (<http://www.courts.ca.gov/documents/jv751> [as of
November 23, 2015]; Evid. Code, § 452, subd. (c) [permissive judicial notice for
“[o]fficial acts of the . . . judicial departments” of any state]; Alan v. American Honda
Motor Co., Inc. (2007) 40 Cal.4th 894, 904, fn. 5 [judicial notice of Judicial Council
forms].)
                                              4
outside the home and scheduled a contested jurisdictional hearing, with no time waiver.
There was no discussion at the hearing about the possibility of a DEJ.
       Following a contested jurisdictional hearing, the juvenile court sustained an
amended felony count against Trenton for being a minor in possession of a firearm (Pen.
Code, § 29610) and dismissed the original count. The court continued Trenton as a ward
of the court at the dispositional hearing on January 5, 2015, and committed him to a
rehabilitation facility for a period of six months. Trenton was awarded 43 days of
custody credit.
                                             II.
                                        DISCUSSION
       A. The Case Must Be Remanded for a Determination Whether Trenton Is Eligible
          for a Deferred Entry of Judgment.
       Trenton argues that the juvenile court erred by failing to conduct a hearing into his
eligibility for a DEJ. We agree that the DEJ statutory procedures were not followed.
       After a minor is properly notified of his or her eligibility for a DEJ, the juvenile
court has a duty to evaluate whether the minor is suitable for one. “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).) The Attorney General does not dispute that the juvenile
court failed to determine whether a DEJ would be a suitable disposition for Trenton, but
she argues that the court was excused from doing so because Trenton contested the
charges against him. It is true that a juvenile court is not required to rule on a minor’s
possible suitability for a DEJ where the minor is properly advised of his or her DEJ
eligibility and fails to admit the charges or waive the jurisdictional hearing because such
a failure amounts to a rejection of the DEJ’s expedited procedure. (In re Usef S. (2008)
160 Cal.App.4th 276, 283, 286; In re Kenneth J. (2008) 158 Cal.App.4th 973, 979-980.)
       But where, as here, the minor is not properly notified of DEJ procedures, the
juvenile court may not fail to consider the minor’s suitability. This case shares
unfortunate similarities with In re C.W. (2012) 208 Cal.App.4th 654 (C.W.), in which
                                              5
Division Four of this court considered an appeal of an order from the same county. In
C.W., the prosecutor filed a form JV-750 with the wardship petition stating he had
determined C.W. was eligible for a DEJ, but the prosecutor failed to file a form JV-751
and “failed to otherwise notify C.W. of the detailed advisements required by section 791,
subdivision (a)(1) through (6).” (Id. at p. 660.) In C.W., as here, the Attorney General
argued that the court should presume the notification was provided to the minor and his
parents (Evid. Code, § 664 [presumed that official duty regularly performed]). (C.W., at
p. 660.) The C.W. court rejected this argument, noting that “no form JV-751 appears in
the record, nor is there any evidence that the juvenile court served C.W. and her parent or
guardian with such a form, as required by California Rules of Court, rule 5.800(c).
Likewise, a DEJ was never mentioned at any of the hearings. In our view, the existence
of these omissions, in the context of an otherwise complete record, is sufficient to rebut
the presumption that C.W. was properly advised of her DEJ eligibility either by the
prosecutor or by the juvenile court.” (Id. at pp. 660-661.)
       The only difference between this case and C.W. is that the prosecutor here filed the
first page of form JV-751. (Cf. C.W., supra, 208 Cal.App.4th at p. 660.) But this first
page was deficient even if the record were to show, which it does not, that the prosecutor
provided Trenton and his mother with the second page of the form containing the detailed
advisements required under section 791, subdivision (a).3 Although the first page


3
  In In re Joshua S. (2011) 192 Cal.App.4th 670, Division Two of this court considered
another appeal from this same county regarding DEJ procedures. The court noted it was
“not clear from the record” why the second page of form JV-751 was missing but hinted
that appellant might not have met his burden to provide the appellate court with a
complete record on appeal. (Id. at p. 681, fn. 7.) The Attorney General here cites
Joshua S. and chides Trenton for possibly not meeting his burden of providing this court
with a complete appellate record. But there is nothing to suggest that the second page of
form JV-751exists and was left out of our otherwise complete appellate record as a result
of inattentiveness. A form JV-751 filed in connection with a previous wardship petition
filed in this case likewise fails to include a second page, making this at least the third
time when the second page of the same form was missing in an appeal from this same
county, a further indication that the fault for an omitted second page does not likely lie
with Trenton.
                                             6
informed Trenton that the district attorney had determined Trenton was eligible to be
considered for a DEJ, there was no information about a scheduled hearing to consider his
suitability. The juvenile court is not required ultimately to grant a DEJ, but it “is required
to at least follow specified procedures and exercise discretion to reach a final
determination once the mandatory threshold eligibility determination is made.” (In re
Luis B. (2006) 142 Cal.App.4th 1117, 1123.) Where, as here, the prosecuting attorney
files a determination of eligibility but the accompanying citation fails to provide notice of
a date when a suitability hearing will be conducted, we cannot conclude that the juvenile
court met its obligations. (In re D.L. (2012) 206 Cal.App.4th 1240, 1242, 1244-1245
[reversing dispositional order where DEJ hearing never scheduled];4 see also In re
Spencer S. (2009) 176 Cal.App.4th 1315, 1323 [where prosecutor did not initiate
procedure for court to consider DEJ, minor had no opportunity to admit petition’s
allegations and thus did not foreclose DEJ claim on appeal].)
       Because the juvenile court did not conduct the necessary inquiry into Trenton’s
suitability for a DEJ, we set aside its findings and dispositional order and remand the case
for further proceedings that comply with the statutory scheme. (C.W., supra,
208 Cal.App.4th at p. 662.)


4
  In re D.L. concluded that the failure to provide the minor with notice of when a DEJ
hearing would take place amounted to a denial of due process because D.L. did not
receive adequate notice or an opportunity to be heard, which “deprived [him] of
fundamental procedural rights.” (206 Cal.App.4th at p. 1245.) Trenton likewise argues
that insufficient notice here deprived him of his due process rights under the federal and
California constitutions. But D.L. simply assumed, without analysis, that a DEJ
implicates a constitutionally protected liberty interest created by state law. (Hicks v.
Oklahoma (1980) 447 U.S. 343, 346; Sandin v. Conner (1995) 515 U.S. 472, 480, 487
[state-created interest must be of “real substance,” such as an action that “will inevitably
affect the duration of [a] sentence”]; see also Bonin v. Calderon (9th Cir. 1995) 59 F.3d
815, 842 [state law can create a liberty interest when the law contains “(1) ‘substantive
predicates’ governing official decisionmaking, and (2) ‘explicitly mandatory language’
specifying the outcome that must be reached if the substantive predicates have been
met”]. Because we conclude that this matter must be remanded because the DEJ
statutory procedures were not followed, we need not decide whether a DEJ involves a
constitutionally protected liberty interest created by state law.
                                              7
       B. Trenton Is Entitled to Additional Custody Credits.
       Trenton and the Attorney General agree that Trenton is entitled to three additional
days of predisposition custody credit. This issue may now be moot given that Trenton’s
six-month term in custody has expired. Because we are remanding the case for another
reason, and in the interest of accuracy, we shall order the dispositional order corrected to
include the three additional days.
                                             III.
                                        DISPOSITION
       We set aside the juvenile court’s findings and dispositional order. The matter is
remanded for further proceedings under Welfare and Institutions Code section 790 et
sequitur and California Rules of Court, rule 5.800, including notice to Trenton of his
eligibility for a deferred entry of judgment. If the minor elects a DEJ, the juvenile court
shall exercise its discretion whether to grant Trenton a DEJ. If, as a result of those
proceedings, the juvenile court grants a DEJ, it shall issue an order vacating the findings
and orders. If the juvenile court denies a DEJ, it shall reinstate the jurisdictional and
dispositional orders, subject to Trenton’s right to have the denial of a DEJ reviewed on
appeal. (C.W., supra, 208 Cal.App.4th at pp. 662-663; In re Luis B., supra,
142 Cal.App.4th at pp. 1123-1124.) Whatever the outcome on remand regarding a DEJ,
the dispositional order is ordered amended to include three additional days of
predisposition credit.

                                                    _________________________
                                                    Humes, P.J.

We concur:


_________________________
Margulies, J.

_________________________
Banke, J.


                                              8
Filed 12/10/15
                        CERTIFIED FOR PUBLICATION
             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                          FIRST APPELLATE DISTRICT
                                DIVISION ONE

In re TRENTON D., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,                                        A144070
                                                   ORDER MODIFYING OPINION
        Plaintiff and Respondent,                  [NO CHANGE IN JUDGMENT]
v.
                                                   PUBLICATION REQUEST
TRENTON D.,                                        GRANTED
        Defendant and Appellant.
                                                   (Contra Costa County
                                                   Super. Ct. No. J13-00608)



BY THE COURT:
        The opinion in the above-entitled matter filed on November 23, 2015, was not
certified for publication in the Official Reports. After the court’s review of a request
under California Rules of Court, rule 8.1120, and good cause established under
rule 8.1105, it is hereby ordered that the opinion should be published in the Official
Reports.
        The opinion is modified on page 7 at footnote 4 as follows: (1) to add the signal
“see also” immediately before Sandin v. Conner in line 8, (2) to delete the “see also”
signal which immediately precedes Bonin v. Calderon in line 10, and (3) to insert a
closed parenthesis after the period following the closed bracket in line 14.
        This modification does not affect the order of the footnotes nor change the
appellate judgment. (Cal. Rules of Court, rule 8.264(c)(2).)

Date____________________                   ________________________________
                                           Presiding Justice


                                              1
Trial Court:              Contra Costa County Superior Court

Trial Judge:              Honorable Rebecca C. Hardie

Counsel for Appellant:    Christopher Love

Counsel for Respondent:   Kamala D. Harris, Attorney General, Gerald A. Engler
                          and Jeffrey M. Laurence, Assistant Attorneys General,
                          Donna M. Provenzano and Ronald E. Niver, Deputy
                          Attorneys General for Plaintiff and Respondent.




                                    2
