Filed 3/27/14 In re N.H. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


In re N.H., a Person Coming Under the                                H039258
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JV38234)


THE PEOPLE,

         Plaintiff and Respondent,

             v.

N.H.,

         Defendant and Appellant.



                                                   INTRODUCTION
         The juvenile court found true the allegations that appellant N.H. had committed
vehicular manslaughter (Pen. Code, § 191.5, subd. (b); count 1), driving under the
influence of alcohol and/or drugs and causing injury (Veh. Code, § 23153, subd. (a);
count 2), driving under the influence of alcohol with a blood alcohol level of 0.08 percent
and causing injury (Veh. Code, § 23153, subd. (b); count 3), and carrying alcohol in a
vehicle by a driver under 21 (Veh. Code, § 23224, subd. (a); count 4). The court also
found true all enhancements attached to counts 1 through 3. On appeal, N.H. contends
that the juvenile court erred by (1) failing to conduct a hearing to determine her
suitability for the deferred entry of judgment (DEJ) program, (2) failing to expressly
declare whether counts 1 through 3 were felonies or misdemeanors, as required by
Welfare and Institutions Code section 7021, (3) failing to strike counts 2 and 3 and the
attached enhancements, and (4) miscalculating the maximum time of confinement
(MTC).
       For the reasons stated below, we will reverse and remand the dispositional order.
                                       BACKGROUND
       Around 9:00 p.m. on November 20, 2010, N.H., then a 17-year old, drove her best
friend, J.W., and three minor boys, C.D., N.V., and A.D., to a party. On the way to the
party, N.H. stopped by a liquor store, where C.D. stole a bottle of brandy. At the party,
N.H. and her four friends each drank from the bottle of brandy. There were also several
other open containers of alcohol for anyone to consume. N.H. and her friends stayed for
45 minutes, and then decided to leave to go to another party.
       Before leaving, C.D. believed that “no one was good to drive.” Nevertheless, C.D.
offered to drive because he thought that N.H. should not drive. N.H. responded, “It’s
fine, I can drive.” N.H. got in the driver’s seat; N.V. sat in the front passenger seat; and
C.D., A.D., and J.W. sat in the backseat. J.W. sat in between C.D. and A.D. While
driving, N.H. looked at her phone-based GPS to navigate her way to the next party. The
roads were wet from rainfall earlier that day.
       Around midnight, N.H. took the Bernal Road onramp onto the 101 freeway.
When she tried to merge onto the right lane of the freeway, she “cut off” Jeffrey Sims.
N.H. was driving slower than Sims at the time. The right front wheel of Sim’s car hit
N.H.’s car’s left rear wheel. Sims veered to the left and N.H. veered to the right. Sims’s
car bounced off the median and spun across the highway. His car stopped in the right


       1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
                                              2
lane, facing the opposite direction of traffic. Sims exited his car, called 911, and walked
towards N.H.’s car.
       N.H.’s car spun out and broadsided a tree along the highway. N.H., C.D., and
A.D., were injured. N.V. did not appear injured and exited the vehicle after the accident.
J.W. died in the accident.
       At the scene of the accident, officers found a marijuana box, a baggy of marijuana,
marijuana in a plastic vial, an empty bottle of brandy, and a bottle of vodka, which was
inside a backpack in N.H.’s car. Officer Gary Gray, who responded to the accident,
contacted the three boys and observed that they appeared to have been drinking. He also
noticed that they smelled of alcohol.
       N.H. and two of the boys were transported to a hospital. Officer Gray spoke to
N.H. at the hospital. N.H. admitted to the officer that she had been drinking earlier that
evening. She told the officer that she had three shots of brandy prior to driving. She said
she took her first shot around 8:30 p.m. and her last shot around 9:00 p.m. The officer
observed that alcohol odors were emanating from N.H.’s breath and body and that her
eyes were red and watery.
       Officer Gray administered field sobriety tests, including two preliminary alcohol
screening (PAS) tests at 2:23 a.m. and 2:26 a.m. N.H. blew a 0.037 percent and 0.034
percent on the PAS device. The officer also administered a blood test at 2:45 a.m. The
test indicated that she had a blood alcohol level (BAL) of 0.043 percent. Estimating from
N.H.’s height, 4 feet and 11 inches, and weight, 125 pounds, a criminalist concluded that
N.H. had a BAL of approximately 0.09 percent at the time of the accident.
       Based on Officer Gray’s questioning and the field sobriety tests, he concluded that
N.H. was impaired at the time of the accident. The officer also concluded, based on the
statements of the individuals involved in the accident and the evidence at the scene, that
N.H. made an unsafe lane change.


                                             3
       On April 28, 2011, the district attorney filed a juvenile wardship petition and a
form and written notice of N.H.’s eligibility for DEJ. On August 29, 2012, the district
attorney filed a second amended juvenile wardship petition. The petition alleged that
N.H. committed vehicular manslaughter (Pen. Code, § 191.5, subd. (b); count 1), driving
under the influence of alcohol and/or drugs and causing injury (Veh. Code, § 23153,
subd. (a); count 2), driving under the influence of alcohol with a blood alcohol level of
0.08 percent and causing injury (Veh. Code, § 23153, subd. (b); count 3), and carrying
alcohol in a vehicle by a driver under the age of 21 (Veh. Code, § 23224, subd. (a);
count 4). As to count 1, the petition further alleged that N.H. personally inflicted great
bodily injury upon C.D. and A.D. (Pen. Code, § 12022.7, subd. (a)) and that she
personally inflicted bodily injury upon N.V. (Veh. Code, § 23558). As to counts 2 and 3,
the petition further alleged that N.H. inflicted great bodily injury upon J.W., C.D., and
A.D. (Pen. Code, § 12022.7, subd. (a)).
       The juvenile court held a five-day contested jurisdictional hearing. The
prosecution’s theory was that N.H. was under the influence of alcohol and caused the
accident when she made an unsafe lane change. The defense’s theory at the hearing was
that Sim’s driving contributed to the accident and that N.H.’s impairment did not affect
her driving or cause the accident.
       Following the jurisdictional hearing, the juvenile court found true all of the
allegations and enhancements. At the contested dispositional hearing, the juvenile court
declared N.H. a ward of the court. The court placed N.H. on probation and adopted the
probation officer’s recommendations, with some modifications. One of the conditions
mandated that N.H. serve sixth months in juvenile hall. The court also suspended N.H.’s
license for one year. The court set the MTC at 23 years 4 months.
                                        DISCUSSION
       N.H. raises several contentions on appeal. First, N.H. argues that the juvenile
court erred by failing to hold a DEJ suitability hearing. Second, she contends that the
                                              4
juvenile court failed to expressly declare whether counts 1 through 3 were misdemeanors
or felonies. Third, she contends that counts 2 and 3 and the attached enhancements must
be stricken as they are lesser included offenses of count 1. Lastly, she contends that the
MTC was miscalculated.
            I. DEJ Suitability Hearing
            1. Proceedings Below
       On April 28, 2011, the district attorney filed a form determining that N.H. was
eligible for DEJ. The district attorney also provided N.H. with a written notification of
her eligibility for DEJ, which included an advisement that if the parties and the juvenile
court agree that DEJ should be granted, “in lieu of normal court proceedings the youth
will be required to . . . admit that the youth committed the offense or offenses alleged to
have been committed. The District Attorney may require an admission to all offenses
charged.”
       At arraignment on May 18, 2011, N.H. waived time for the jurisdictional hearing.
The probation department submitted a DEJ suitability report, in which it recommended
that N.H. should be found unsuitable for DEJ. Specifically, the report noted that “[e]ven
though [N.H.] appears remorseful, she needs to be held accountable for her deadly
decision to drink and drive. The Officer thought [N.H.] would have at least learned a
lesson . . . however, there have been pictures posted on facebook a few month later
showing [N.H.] with her friends partying and being in the presence of alcohol. This
Officer does not believe [N.H.] understands the seriousness of her actions and how much
she has affected the lives of the victim’s family. . . . [¶] This Officer believes Wardship
must be established in order to hold her accountable in a meaningful manner to provide
close supervision of her behavior. Given the gravity of the offense, Wardship will
provide for a tangible consequence if she fails. Given the totality and circumstance of the
offense, this Officer finds the minor unsuitable for DEJ as her Probation requirements are
beyond the scope of the DEJ program.
                                             5
       In January 2012, N.H. submitted a brief in favor of DEJ, disputing the probation
report’s recommendation. The prosecution filed opposition to N.H.’s motion for DEJ. In
February 2012, the juvenile court held a pretrial hearing, where it discussed whether N.H.
was suitable for a DEJ determination. The court stated that before it could make a
determination of whether N.H. was suitable for DEJ, “the minor needs to demonstrate
that she is in no uncertain terms admitting the allegations of the petition to be not only
eligible, but suitable for [DEJ].” The court expressed that it had “certain reservations and
hesitations about [N.H.’s] suitability for [DEJ] . . . ; but it’s really a question of
procedure.” The court stated that “the pre-requisite to [a suitability determination] is you
admit the allegations of the petition. And I understand that there are reasons for you not
wanting to do those that have more to do with legal questions than factual questions. I
understand that. But in the Court’s opinion, I have no duty to inquire and hold a hearing
as to suitability until those pre-requisite conditions are met. . . . [¶] The People have
through their appropriate notification to you notified you that you are eligible for [DEJ].
And in that notice there should be a clear statement that to be eligible you must admit the
allegations in the petition for me to be able to reach the decision as to whether or not
you’re suitable. So it appears, unless something has changed, that we are not in a
position now or the Court is not in a position and the case is not in a posture where I can
make that determination at this time.”
       Defense counsel asked whether the juvenile court was not willing to go forward
with the suitability hearing without N.H.’s admission to the petition. The court
responded, “That’s correct. [¶] You know, as I said, I reviewed 790 and 791 as well as
some of the case law that interprets the statutory scheme for [DEJ], and it’s clear to me
that my discretion [and] my duty to conduct a hearing as to the suitability of this minor
gives me the discretion to do that, but also to require that there be an admission to the
petition.” The court, however, granted defense counsel a continuance for further research
and briefing of the DEJ issue.
                                                6
       Subsequently, N.H. submitted additional briefing, in which she argued that an
admission to the petition was not required before the juvenile court could determine her
suitability for DEJ. The court held a hearing in March 2012, where it determined that it
would not conduct a suitability hearing unless N.H. admitted to the petition. The court
explained that “the statutory scheme is clear that an admission is required before the
Court undertakes a suitability hearing. . . . And even if that were a question of the
Court’s discretion, I would still would [sic] not reach a different decision because the
admission in this case might be very instructive and very important to the Court in
making its determination as to just how sincere the minor is in expressing any regret, her
motivations for wanting to undertake a sincere effort in rehabilitation; and those are . . .
some of the key issues [and] components that the Court must weigh in its decision.”
           2. Analysis
       Under the DEJ provisions of section 790 et seq., “ ‘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.’ ” (In re Kenneth J. (2008)
158 Cal.App.4th 973, 976 (Kenneth J.).) “ ‘If the minor waives the right to a speedy
jurisdictional hearing, admits the charges in the petition and waives time for
pronouncement of judgment, the court may summarily grant DEJ or refer the matter to
the probation department for further investigation.’ ” (Id. at p. 977.)
       The determination of whether to grant DEJ requires consideration of “two distinct
essential elements of the [DEJ] program”: “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 trial court . . . has the ultimate discretion to rule on the suitability
of the minor for DEJ . . . .” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).)
       “The prosecuting attorney shall review his or her file to determine whether [the
eligibility requirements set forth in § 790, subd. (a)(1)-(6)] apply.” (§ 790, subd. (b).)
California Rules of Court, rule 5.800(b) reiterates the prosecuting attorney’s duty, that
                                                7
“[b]efore filing a petition alleging a felony offense, or as soon as possible after filing, the
prosecuting attorney must review” the minor’s file to determine his or her eligibility
under section 790, subdivision (a).
       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.” (§ 790, subd. (b).) Upon finding the minor eligible, the prosecuting
attorney “must file” a form entitled “Determination of Eligibility-Deferred Entry of
Judgment-Juvenile (form JV-750),” at the time that the wardship petition is filed. (Cal.
Rules of Court, rule 5.800(b).) In addition, the prosecutor’s “written notification to the
minor” of the DEJ eligibility “shall also include” a “full description of the procedures for
[DEJ],” a general explanation of the roles and authorities of the various government
entities involved, and “[a] clear statement that, in lieu of jurisdictional and disposition
hearings, the court may grant [DEJ] 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), italics added.)
       Once the minor’s eligibility is established, the juvenile court has the discretion to
determine if the minor is suitable for DEJ after consideration of certain statutory factors.
(In re Usef S. (2008) 160 Cal.App.4th 276, 283-284 (Usef S.); Luis B., supra,
142 Cal.App.4th at p. 1123.) “Otherwise stated, once eligibility is established, ‘the
statutory language empowers but does not compel the juvenile court to grant [DEJ].’
[Citations.]” (Usef S., supra, 160 Cal.App.4th at p. 284.)
       In Kenneth J., the appellate court considered circumstances similar to those
present here. In that case, the minor had been informed of his DEJ eligibility, but insisted
on contesting the charges through a jurisdictional hearing. (Kenneth J., supra, 158
Cal.App.4th at pp. 977-978.) The appellate court rejected the minor’s argument that the
trial court was nonetheless required to hold a DEJ suitability hearing. The appellate court
                                               8
noted that “It is perhaps true the DEJ statutes make no express provision for a minor in
Kenneth’s position, one who is advised of his DEJ eligibility, who does not admit the
charges in the petition or waive a jurisdictional hearing, and who does not show the least
interest in probation, but who insists on a jurisdictional hearing in order to contest the
charges. But the DEJ is clearly intended to provide an expedited mechanism for
channeling certain first-time offenders away from the full panoply of a contested
delinquency proceeding. That goal could not coexist with a minor who insists on
exercising every procedural protection offered, and who then on appeal faults the juvenile
court for not intervening and short circuiting those very protections. This would place a
juvenile court in an impossible ‘Heads he wins, tails I lose’ situation—not to mention
apparently compelling a juvenile court to hold a hearing to consider DEJ for a minor who
evinces no interest whatsoever in that option. We decline to adopt such a mischievous, if
not self-defeating, construction.” (Id. at pp. 979-980.)
       Similarly, in Usef S., the appellate court held that the juvenile court was not
required to determine a minor’s DEJ suitability when the minor declined to admit the
allegations against him. There, the minor argued that the juvenile court was required by
the DEJ statutes to exercise its discretion to determine his DEJ suitability. (Usef S.,
supra, 160 Cal.App.4th at p. 282.) However, the appellate court held that “the juvenile
court committed no error in failing to hold a hearing to determine the appellant’s
suitability for DEJ once it became clear appellant was not admitting the allegations
against him, but rather was insisting on contesting them at a jurisdictional hearing.” (Id.
at p. 286, fn. omitted.)
       Here, N.H. was found eligible for DEJ and pursuant to sections 790 and 791, the
prosecutor filed a form and written notice of N.H.’s eligibility for DEJ. The written
notice advised N.H. that if the parties and the court agreed that DEJ should be granted,
“in lieu of normal court proceedings” she would be required to “admit that [she]
committed the offense or offenses alleged to have been committed” in the petition in
                                              9
order to be granted DEJ. However, N.H. did not admit to the allegations in the petition,
and she proceeded with a contested jurisdictional hearing.
       N.H. argues that Kenneth J. and Usef S. are distinguishable from the present case
because, unlike the minors in those cases, she requested a DEJ suitability determination
and sought DEJ. We are not convinced by this distinction. Indeed, allowing N.H. to
have both a suitability hearing without admitting to the petition and a contested
jurisdictional hearing would contradict the intent of the DEJ program to provide “an
expedited mechanism for channeling certain first-time offenders away from the full
panoply of a contested delinquency proceeding.” (Kenneth J., supra, 158 Cal.App.4th at
p. 980.) Under the circumstances, N.H.’s failure to admit to the petition and her choice to
proceed with a contested jurisdictional hearing was tantamount to a rejection of DEJ.
The juvenile court was thus not obligated to hold a DEJ suitability hearing. (See id. at
p. 980; Usef S., supra, 160 Cal.App.4th at p. 286.)
           II.Express Declaration of N.H.’s Offenses as Felonies or Misdemeanors
       Next, N.H. claims that remand is necessary under section 702 for the trial court to
make an express declaration about whether her counts of vehicular manslaughter, driving
under the influence of alcohol and/or drugs and causing injury, and driving under the
influence of alcohol with a blood-alcohol level of 0.08 percent and causing injury are
felonies or misdemeanors.
       Section 702 provides, in pertinent part: “If the minor is found to have committed
an offense which would in the case of an adult be punishable alternatively as a felony or a
misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” The
statute “is unambiguous. It requires an explicit declaration by the juvenile court whether
an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W.
(1997) 14 Cal.4th 1199, 1204 (Manzy W.).) The statute “serves the purpose of ensuring
that the juvenile court is aware of, and actually exercises, its discretion under Welfare and
Institutions Code section 702. For this reason, it cannot be deemed merely ‘directory.’ ”
                                             10
(Id. at p. 1207.) “The key issue is whether the record as a whole establishes that the
juvenile court was aware of its discretion to treat the offense as a misdemeanor and to
state a misdemeanor-length confinement limit.” (Id. at p. 1209.)
       A juvenile court’s failure to make the necessary declaration “requires remand . . .
for strict compliance with Welfare and Institutions Code section 702.” (Manzy W., supra,
14 Cal.4th at p. 1204.) On remand, the maximum period of physical confinement may
need to be recalculated based on the juvenile court’s express declaration. (See id. at
p. 1211.)
       In this case, N.H.’s vehicular manslaughter and driving under the influence and
causing injury offenses could have been punishable as either felonies or as
misdemeanors. (See People v. Traylor (2009) 46 Cal.4th 1205, 1210, fn. 2; Veh. Code,
§ 23554.) The petition, the minute orders from the jurisdictional and the dispositional
hearings, and the juvenile court’s oral pronouncement at the jurisdictional hearing
referred to counts 1 through 3 as felonies. Nevertheless, there is nothing on the record
demonstrating that the court was aware of its discretion and exercised that discretion to
treat these allegations as misdemeanors. Therefore, remand is appropriate to allow the
court to make an express declaration as to whether the offenses are felonies or
misdemeanors. (See Manzy W., supra, 14 Cal.4th at p. 1209.) In the event that the court
elects to treat the offenses as misdemeanors, it shall recalculate the MTC accordingly.
            III. Conviction of a Lesser Included Offense
       Next, N.H. contends that counts 2 and 3 (driving under the influence and causing
injury) and the attached enhancements must be stricken as they are lesser included
offenses of count 1 (vehicular manslaughter).
       “In California, a single act or course of conduct can lead to convictions ‘of any
number of the offenses charged.’ [Citations.] However, a judicially created exception to
this rule prohibits multiple convictions based on necessarily included offenses.
[Citations.]” (People v. Ramirez (2009) 45 Cal.4th 980, 984.) A defendant cannot be
                                            11
convicted of both a lesser included offense and the greater offense. (People v. Reed
(2006) 38 Cal.4th 1224, 1227.) Where a defendant has been convicted of both, the
conviction of the lesser included offense must be reversed and any attached
enhancements stricken. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1150-1151
(Binkerd).)
       N.H. primarily relies on People v. Miranda (1994) 21 Cal.App.4th 1464, in which
the appellate court determined that Vehicle Code section 23153 is a lesser included
offense of Penal Code section 191.5. (Id. at p. 1468.) In that case, the court explained
that where “[o]ne person who injures a person while driving under the influence commits
a violation of Vehicle Code section 23153; and if that person dies from that injury—
whether immediately or sometime later—a violation of Penal Code section 191.5 has
occurred.” (Id. at p. 1468; see also Binkerd, supra, 155 Cal.App.4th at p. 1148.)
       However, in instances where in a single incident a defendant commits vehicular
manslaughter as to one individual and also causes injury to individuals other than the
manslaughter victim, separate punishment is permissible. (See People v. McFarland
(1989) 47 Cal.3d 798, 803-804; People v. Thompson (2009) 180 Cal.App.4th 974, 978.)
In this case, N.H. caused great bodily injury to C.D. and A.D., who were individuals
other than the manslaughter victim. Thus, the allegations as to counts 2 and 3 and the
attached enhancements as to victims, C.D. and A.D., were properly sustained.
       However, the enhancements attached to counts 2 and 3 as to victim J.W. present a
problem. N.H.’s sentence on counts 2 and 3 were enhanced under Penal Code section
12022.7, subdivision (a) for each person she personally inflicted great bodily injury upon,
including J.W. An enhancement under Penal Code section 12022.7, subdivision (a)
cannot apply to crimes of murder or manslaughter. (Pen. Code, § 12022.7, subd. (g); see
also Binkerd, supra, 155 Cal.App.4th at p. 1149 [enhancements of lesser included offense
must be stricken].) Therefore, the enhancements attached to counts 2 and 3 as to victim,
J.W., must be stricken.
                                            12
            IV. Maximum Time of Confinement

       Lastly, N.H. argues that the juvenile court improperly calculated the MTC at 23
years and four months. She contends that the MTC should be 11 years 8 months (upper
term, including enhancements, for the principal offense, plus one-third the mid-term and
enhancements for each subordinate offense). The Attorney General disagrees with
N.H.’s proposed calculation, but agrees that the MTC was miscalculated, as it appears
that the court based its calculation on the original petition. The original petition alleged
gross vehicular manslaughter under subdivision (a) of Penal Code section 191.5, rather
than vehicular manslaughter under subdivision (b).
       Although it appears that the MTC was miscalculated, there is nothing in the record
indicating how the juvenile court calculated N.H.’s MTC to be 23 years 4 months.
Therefore, on this record, we are not confident that we can accurately correct the error.
On remand, we direct the juvenile court to recalculate the MTC and to articulate how the
court arrived at the final result.
                                        DISPOSITION
       The dispositional order is reversed. The matter is remanded to the juvenile court
with directions to do the following: (1) make an express declaration, pursuant to section
702, as to whether counts 1 through 3 are felonies or misdemeanors, (2) strike the Penal
Code section 12022.7, subdivision (a) enhancements attached to counts 2 and 3, as to
victim, J.W., and (3) recalculate the maximum time of confinement in conformity with
this opinion.




                                             13
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




                                   14
