Filed 9/3/13 In re Christine C. CA4




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 CHRISTINE C., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,                                                                                F065466

         Plaintiff and Respondent,                                                  (Madera Super. Ct.
                                                                                    No. MJL016948A)
                   v.

CHRISTINE C.,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
         Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for
Plaintiff and Respondent.

         *   Before Poochigian, Acting P.J., Franson, J. and Peña, J.
                                            -ooOoo-
                                      INTRODUCTION
          A juvenile wardship petition (Welf. & Inst. Code,1 § 602, subd. (a)) was filed in
the Superior Court of Madera County alleging appellant Christine C., who was 17 years
old, committed count I, felony assault with a deadly weapon, a knife, upon S.A., during
an altercation at a party (Pen. Code, § 245, subd. (a)(1)). After a contested jurisdictional
hearing, the court found the allegation true. Appellant was declared a ward of the court,
ordered to serve time in custody, and placed on probation under various terms and
conditions.
          On appeal, appellant contends the prosecutor failed to comply with his statutory
duties of notice and determination of her eligibility for the Deferred Entry of Judgment
(DEJ) program. Appellant also contends that one of the terms of probation is
unconstitutionally overbroad. We will modify the probation condition and otherwise
affirm.
                                            FACTS
          On the evening of January 16, 2012, about 25 to 30 young people responded to a
Facebook post and attended a party for S.A. at Bass Lake. They sat around a campfire
and drank beer and hard liquor. The guests included M.W. and his friend, appellant, who
arrived together in M.W.‟s truck. S.A., who was 20 years old, testified she knew M.W.
from school, but she had never met appellant.
          Around 10:30 p.m., S.A. saw one of her girlfriends walk out of the woods. The
young woman‟s pants were down to the ankles, and she said that M.W. tried to rape her.
Some of the young men attacked M.W. and beat him up. S.A. testified that one man
pulled a knife, but he did not use it. S.A testified she tried to calm everyone down and

          1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.



                                               2.
stop the fight. S.A. told M.W. that he and appellant needed to leave. M.W. and appellant
got into the truck to leave, and everyone calmed down.
       S.A. testified that a few minutes later, she realized M.W.‟s truck had traveled
about 25 feet from the campfire and stopped. S.A. went to the truck, and found M.W. in
the driver‟s seat and appellant in the front passenger seat. S.A. asked M.W. why he was
still there and yelled at him that he needed to leave. M.W. did not respond.
       S.A. testified that as she tried to talk to M.W., she heard some noises behind her,
like someone was walking. S.A. turned around and saw appellant. Appellant did not say
anything to her. S.A. testified appellant suddenly stabbed her in the arm with a
pocketknife. S.A. testified they were face-to-face and “rolling around on the ground, and
then I remember blood, there was blood everywhere.”
       After she was stabbed, S.A. tried to get back to her friends, but she tripped and fell
to the ground. S.A. hit her head and passed out. When she woke up, the truck was still
there, but M.W. and appellant were gone. S.A.‟s friends took her to the hospital and
called the police. After S.A. was stabbed, one of the party guests used a baseball bat to
smash M.W.‟s truck.
       S.A. suffered eight different stab wounds to her left hip, left and right chest, and
right arm. She was in the hospital for two days.
       S.A. testified she did not speak to, threaten, or strike appellant prior to being
stabbed. S.A. admitted she had consumed a large amount of hard liquor and smoked
marijuana, and she was under the influence that night.2
The investigation
       Around 11:45 p.m. on the night of the stabbing, Madera County Sheriff‟s Deputy
Colleen Weisert contacted appellant at her residence. Appellant spontaneously said she

       2 S.A. testified she had previously been on probation for petty theft. She had been
in fights before, the most recent occurring when she was 14 years old and beat up a girl
who hit her brother.


                                              3.
was probably the person that Weisert was looking for because she had stabbed a girl.
Appellant said she had gone to a party with M.W., and they had been chased. Appellant
said someone hit her and she felt she had to defend herself. Appellant said she stabbed a
girl with a pocketknife. Appellant had seen the girl before but she did not know her
name.
        Deputy Weisert advised appellant of the warnings pursuant to Miranda v. Arizona
(1966) 384 U.S. 436, and she agreed to answer questions. Appellant said someone
accused M.W. of trying to rape a woman, and they were told to leave. When they tried to
leave, they couldn‟t drive away because the truck had a flat tire. Appellant said a group
of people “swarmed” the truck as they remained inside. Appellant took out her knife
because she felt she needed to defend herself since there were “a couple of big guys” that
were on her side of the truck. Appellant said she got out and tried to push the truck.
        Appellant said S.A. punched the back of her head. Appellant dropped her knife
and tried to pick it up. S.A. jumped on appellant and pushed her down. Appellant
admitted she stabbed S.A. a couple of times, but she had to defend herself. Appellant
suffered cuts and scratches, and she said the injuries happened when she stabbed S.A.
        Deputy Weisert testified appellant said she had been drinking that night, but she
did not appear intoxicated. Appellant was taken to the hospital and needed stitches for an
injury on her hand.
        M.W.‟s truck was towed from the camping area. There was damage to the truck‟s
body, the windows were smashed, and one of the tires had been slashed with a knife.




                                             4.
M.W.’s testimony
         At the contested jurisdiction hearing, M.W. testified for appellant and explained
that everyone at the party was drinking, and S.A. appeared drunk. A girl claimed M.W.
tried to rape her. M.W. testified he did not know the girl and he never touched her. 3
         M.W. testified he tried to leave, but appellant did not follow him to his truck.
M.W. decided he could not leave without her. Some men pulled M.W. out of the truck
and beat him up. One man pulled a buck knife, held it to M.W.‟s throat, and then slashed
one of the truck‟s tires.
         M.W. testified that he did not see what happened to appellant, but he believed she
stopped the men from beating him. The assailants backed away, and they let appellant
and M.W. get into the truck. As M.W. drove away, some people threw bottles at the
truck.
         M.W. testified he did not get far because of the slashed tire, and his truck was
stuck on the road. S.A. repeatedly walked up to the truck, cursed at them, and told them
to leave. M.W. thought S.A. was acting crazy, aggressive, and angry, like she was on
drugs.
         M.W. was afraid he was going to be assaulted again and decided to walk away to
get help. Appellant stayed with the truck but M.W. did not know why. M.W. did not
know what happened between appellant and S.A. after he left the area.
Appellant’s testimony
         Appellant testified she had walked away from the campfire to use her cell phone
and suddenly realized M.W. was leaving. She ran to the truck and discovered the other
guests were trying to beat up M.W. A girl said that she thought someone had been raped.
Appellant heard them curse and make racial slurs. One man pulled a knife and held it to

         3 The
            appellate record is silent as to whether M.W. was investigated or charged
with any sexual offenses based on the girl‟s allegations.



                                               5.
M.W.‟s neck. Appellant pulled her own knife, banged it on top of the truck to make
noise, and yelled at them to get away. The others finally stepped away from the truck,
appellant got in, and M.W. tried to drive away.
       Appellant testified the truck got stuck on the road. Appellant and M.W. tried to
call for help but they could not reach anyone. S.A. walked to the truck and talked to
M.W. a couple of times, and then started to yell that he needed to leave. S.A. was drunk,
angry, and staggering.
       Appellant testified she finally reached someone on her cell phone to get help. S.A.
again walked up to the truck and yelled at M.W. Appellant felt something hit the back of
her head. Appellant was startled and dropped her cell phone and knife. Appellant was
not sure if S.A. hit or pushed her, but both of them ended up on the ground. S.A. was on
top of appellant and hit her in the eye.
       Appellant testified she blacked out “and all I remember is … stabbing her three
times, and it was black after that again.” Appellant got up, grabbed her knife and cell
phone, and ran away.
The court’s ruling
       The juvenile petition alleged appellant committed the felony offense of assault
with a deadly weapon, a knife, upon S.A. After the contested hearing, the court found the
felony allegation true. The court found appellant had the right to defend herself but she
exceeded that right by using a deadly weapon.
                                       DISCUSSION
I.     Appellant’s eligibility for DEJ
       Appellant contends the prosecutor failed to comply with his statutory requirement
to determine whether she was eligible for deferred entry of judgment (DEJ) and to advise
her of her eligibility. Appellant asserts that while the prosecutor filed and served her with
the requisite form to determine her eligibility, that form contained conflicting statements
as to whether she was eligible. Appellant further contends that she did not waive her

                                             6.
right to enter the DEJ program, even though she contested the allegations of the juvenile
petition, since the prosecutor failed to provide her with the appropriate notice of her
eligibility. The People respond that the prosecutor complied with his statutory duty and
determined she was ineligible for DEJ.
       We will begin with a brief review of the DEJ statutory scheme and then review the
procedural history of this case.
       A.     Eligibility for DEJ
       The determination of whether to grant DEJ requires consideration of “two distinct
essential elements of the [DEJ] program,” which are “eligibility” and “suitability.” (In re
Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10, italics in original.) 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 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
1203.06 of the Penal Code.”4 (§ 790, subd. (a)(1)-(6).)
       Thus, to be eligible for the DEJ program, the juvenile cannot be alleged to have
committed an offense described by section 707, subdivision (b). (§ 790, subd. (b)(2).)
Section 707, subdivision (b) lists a series of serious offenses, including but not limited to

       4Section 790, subdivision (a)(3) refers to the California Youth Authority (CYA),
which was renamed the California Department of Corrections and Rehabilitation,
Juvenile Justice, effective July 1, 2005. The Division of Juvenile Facilities (DJF) is part
of the Division of Juvenile Justice. (In re M.B. (2009) 174 Cal.App.4th 1472, 1475.)


                                              7.
murder ((b)(1)), attempted murder ((b)(9)), voluntary manslaughter ((b)(30)), robbery
((b)(3)), several sexual offenses ((b)(4)-(b)(8)), assault with a firearm or destructive
device ((b)(13)), and “assault by any means of force likely to produce great bodily
injury” ((b)(14)).
       The prosecuting attorney has the 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), italics added.) California
Rules of Court5, rule 5.800(b) reiterates the prosecuting attorney‟s duty that “[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). (Italics added.)
       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), italics added.) 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 section 602 wardship
petition is filed. (Rule 5.800(b), italics added.)
       If the prosecutor determines the minor is eligible for DEJ, the prosecutor must
serve “written notification to the minor” of his or her eligibility. This notification is
provided in Form JV-751, entitled “Citation and Written Notification for Deferred Entry
of Judgment – Juvenile.” (See, e.g., In re C.W. (2012) 208 Cal.App.4th 654, 659-661
(C.W.); §§ 790, 791) This notice “shall also include” (§ 791, subd. (a), italics added)
notice of the hearing, “ „[a] full description of the procedures for deferred entry of
judgment‟ [citation] and „[a] clear statement that, in lieu of jurisdictional and disposition
       5   All further references to rules are to the California Rules of Court.



                                                8.
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‟ [citation].” (C.W., supra,
208 Cal.App.4th at p. 660; § 791, subds. (a)(1)-(3).)
       By comparison, “[i]f it is determined that the child is ineligible for deferred entry
of judgment, the prosecuting attorney must complete and provide to the court, the child,
and the child‟s attorney” the form JV-750, so stating. (Rule 5.800(e), 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.); In re Luis B. (2006) 142
Cal.App.4th 1117, 1123 (Luis B.).) The court‟s ultimate denial of DEJ is proper “only
when the trial court finds the minor would not benefit from education, treatment and
rehabilitation.” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 561.)
       However, the juvenile court is not required to conduct a suitability hearing if the
prosecutor determines the minor is eligible for DEJ, and the minor receives the requisite
notice of his or her eligibility, but he or she nevertheless denies the allegations of the
petition and requests a contested hearing. (In re Kenneth J. (2008) 158 Cal.App.4th 973,
976-980 (Kenneth J.); Usef S., supra, 160 Cal.App.4th at pp. 281-283.) In such
circumstances, the minor‟s denial of the allegations and insistence on a contested hearing
are “tantamount to a rejection of DEJ.” (Kenneth J., supra, 158 Cal.App.4th at p. 980;
Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.)
       With this background in mind, we turn to the procedural history of this case.
       B.     Procedural history
       On January 18, 2012, a juvenile petition was filed which alleged appellant
committed the felony offense of assault with a deadly weapon, a knife, upon S.A. On the
same day, the prosecution filed with the court Form JV-750, “Determination of
Eligibility” for Deferred Entry of Judgment (DEJ), which consists of preprinted

                                              9.
statements with checkboxes. The first section states that the prosecution had reviewed
appellant‟s records, and the following boxes were checked: appellant was 14 years or
older; she was alleged to have committed at least one felony offense; she had not
previously been declared a ward based on the commission of a felony; she had never
been committed to the California Department of Corrections and Rehabiliation (CDCR),
Division of Juvenile Justice (DJJ); she was currently on formal probation; and she was
eligible for probation pursuant to Penal Code section 1203.06.
       In that same section, the following preprinted box was not checked:

       “There is no allegation that the youth committed an offense described in
       Welfare and Institutions Code section 707(b).” (Italics added.)6
       In the next section of the form, the box was checked which stated: “The youth is
ineligible.”
       At the bottom of Form JV-750, however, the final box was checked which stated:
“Citation and Written Notification for Deferred Entry of Judgment – Juvenile (form JV-
751) is attached.”
       The record contains a proof of service which states the juvenile wardship petition
and Form JV-750, “Determination of Eligibility – Deferred Entry of Judgment –
Juvenile,” were served on appellant, her mother, and her appointed counsel, on or about
January 18, 2012.
       While the final box in form JV-750 was checked, which stated that Form JV-751,
“Citation and Written Notification” for DEJ, was attached, the instant appellate record
does not contain this form or any evidence of its existence.


       6 As we will discuss, post, the awkward language of this statement indicates that if
the box is checked, then the juvenile is not alleged to have committed an offense
described in section 707, subdivision (b); if the box is not checked, then the juvenile is
alleged to have committed such an offense and is therefore ineligible for the DEJ
program.



                                            10.
       On January 19, 2012, appellant appeared in court with her mother and her
attorney, and she denied the petition‟s allegation. On April 12, 2012, appellant requested
a contested jurisdiction hearing. Thereafter, during numerous continuances, none of the
parties addressed appellant‟s eligibility for DEJ.
       On June 7 and 8, 2012, the court conducted the contested jurisdiction hearing and
found the felony allegation true.
       On July 24, 2012, the court denied appellant‟s motion to reduce the count to a
misdemeanor. The court declared appellant a ward of the juvenile court, ordered her to
serve 60 days in custody, and imposed several terms and conditions for probation.
Appellant and her attorney did not refer to DEJ during the disposition hearing.
       C.     Form JV-750
       In the instant case, the prosecutor complied with his duty to file Form JV-750 and
determine whether appellant was eligible. Appellant asserts, however, the form contains
potentially conflicting statements as to whether the prosecutor determined appellant was
or was not eligible for DEJ.
       In that form, the prosecutor checked all but one box as to whether appellant was
eligible. He did not check the box indicating there was no allegation that appellant was
alleged to have committed an offense which was described in section 707, subdivision
(b). The prosecutor‟s failure to check this box reflects the prosecutor‟s determination the
offense alleged in the instant petition – felony assault with a deadly weapon, a knife –
was an offense described in section 707, subdivision (b), thus rendering appellant
ineligible for DEJ. This conclusion is further supported by the prosecutor‟s check of the
box which flatly stated: “The youth is ineligible.”
       Appellant contends the same form contains the contradictory declaration, based on
the prosecutor‟s check of the final box which stated that Form JV-751, the citation and
written notification for DEJ, was attached. As explained, ante, a juvenile must be served



                                             11.
with the written notification about DEJ contained in Form JV-751 only if the prosecutor
determines the juvenile is eligible for DEJ. (§ 791.)
        Thus, the prosecutor filed Form JV-750 but it contained two declarations:
appellant was ineligible for DEJ because the petition alleged she committed an offense
described in section 707, subdivision (b); but the prosecutor also declared he attached
Form JV-751, the written notification of DEJ which is only served if the juvenile is
eligible for DEJ, thus indicating he determined appellant was eligible for DEJ.
        D.     The petition’s allegation
        The underlying question in this case is whether appellant was eligible for DEJ.
Appellant asserts she was eligible because the petition alleged she committed an assault
with a deadly weapon which is not an offense specifically enumerated in section 707,
subdivision (b), the prosecutor made conflicting declarations in Form JV-750, and he
declared but failed to actually serve appellant with Form JV-751.
        Appellant further asserts that Kenneth J., supra, 158 Cal.App.4th 973 and Usef S.,
supra, 160 Cal.App.4th 276 do not prevent her from raising her eligibility for DEJ, even
though she denied the allegations and requested a contested hearing, because she never
received appropriate notice of her eligibility given the conflicting statements in Form JV-
750.7
        The People reply that appellant was ineligible for DEJ but have not offered any
facts, statutory citations, or arguments in support of this bare assertion.
        As explained, ante, a juvenile is ineligible for DEJ if the wardship petition alleges
the juvenile committed an offense enumerated in section 707, subdivision (b). One of the
enumerated offenses is “assault by any means of force likely to produce great bodily


        7Appellant raises an ineffective assistance argument to avoid any claims that she
has waived appellate review of this issue. She has not waived appellate review of this
issue, and we need not address her ineffective assistance claim.



                                             12.
injury.” (§ 707, subd. (b)(14)). Appellant correctly states that she was charged with
“assault with a deadly weapon,” a knife, an offense which is not specifically enumerated
in section 707, subdivision (b).
       However, both appellant and the People have failed to acknowledge the settled
authority that “assault by any means of force likely to produce great bodily injury,” as
described in section 707, subdivision (b)(14), also encompasses “assault with a deadly
weapon,” as charged in the petition in this case. (In re Pedro C. (1989) 215 Cal.App.3d
174, 182 (Pedro C.); In re Sim J. (1995) 38 Cal.App.4th 94, 97-98 (Sim J.).)
       In Pedro C., the minor was alleged to have committed “ „an assault with a deadly
weapon or instrument, to wit: motor vehicle upon … a peace officer ....‟ ” (Pedro C.,
supra, 215 Cal.App.3d at p. 182.) He admitted a violation of former Penal Code section
245, subdivision (b), which stated: “ „Every person who commits an assault with a
deadly weapon or instrument, other than a firearm, or by any means likely to produce
great bodily injury upon the person of a peace officer or fireman engaged in the
performance of his or her duties ....‟ ” (Ibid.) The juvenile court initially concluded that
since the minor was not charged with assault by means likely to produce great bodily
injury, he was not alleged to have committed the offense specifically enumerated in
section 707, subdivision (b)(14). The court then reconsidered the matter and reached the
opposition conclusion. (Pedro C., supra, at p. 182.)
       Pedro C. held section 707, subdivision (b)(14) included the offense of assault with
a deadly weapon, even though it was not specifically enumerated. Pedro C. explained
that section 707, subdivision (b) was enacted to address a list of serious felonies,
including murder. “Minors who have committed these offenses must be evaluated to
determine if they are fit subjects to be dealt with under the Juvenile Court Law [citation].
If they are, and are subsequently committed to [custody], its jurisdiction over them
extends … until their 25th birthday.” (Pedro C., supra, 215 Cal.App.3d at p. 182.)



                                             13.
               “Given this statutory scheme, for this court to determine that assault
       with a deadly weapon is not a section 707, subdivision (b) offense would be
       to elevate form over substance. [Citation.] „ “A deadly weapon is one
       likely to produce death or great bodily injury.” ‟ [Citations.] Necessarily,
       then, assault with a deadly weapon includes assault by means likely to
       produce great bodily injury.” (Pedro C., supra, 185 Cal.App.3d at p. 182;
       accord, Sim J., supra, 38 Cal.App.4th at pp. 97-98.)

       E.     Analysis
       In this case, the juvenile petition alleged appellant committed an assault with a
deadly weapon. In Form JV-750, the prosecutor did not check the box which stated:

       “There is no allegation that the youth committed an offense described in
       Welfare and Institutions Code section 707(b).” (Italics added.)
       The prosecutor‟s failure to check this box indicated his determination that
appellant was alleged to have committed an offense described in section 707, subdivision
(b). The prosecutor‟s determination was consistent with Pedro C.‟s holding that assault
with a deadly weapon was an offense contained within section 707, subdivision (b)(14)‟s
description of “assault by any means of force likely to produce great bodily injury.”
(Pedro C., supra, 215 Cal.App.3d at p. 182.) This determination was also consistent with
the prosecutor‟s ultimate indication in Form JV-750 that appellant was “ineligible” for
DEJ.
       The prosecutor thus complied with his statutory duty to determine appellant‟s
eligibility for DEJ, filed Form JV-750, and stated appellant was ineligible because she
was alleged to have committed an offense described in section 707, subdivision (b).
Once the prosecutor determined appellant was ineligible for DEJ, he was not required to
file and serve appellant with Form JV-751, with written notification of the terms of the
DEJ program.
       However, the prosecutor checked the final box on Form JV-750, which stated:
“Citation and Written Notification for Deferred Entry of Judgment – Juvenile (form JV-
751) is attached.” As the parties agree, there is no evidence Form JV-751 form was



                                            14.
completed, attached to Form JV-750, filed, or served on appellant. Appellant asserts the
prosecutor‟s check of the final box on Form JV-750, and his failure to file Form JV-751,
indicates she was eligible for DEJ but she did not receive the appropriate notice about her
eligibility, and the matter must be remanded consistent with C.W., supra, 208
Cal.App.4th 654 and Luis B., supra, 142 Cal.App.4th 1117.
       C.W. and Luis B. do not support appellant‟s arguments in this case. In C.W., the
prosecutor determined the minor was eligible for DEJ and filed Form JV-750, but failed
to complete or serve Form JV-751, or give the statutorily required notice of his eligibility.
The minor denied the allegations and requested a contested hearing. On appeal, he
complained about the prosecutor‟s failure to give the requisite notice of his eligibility for
DEJ, and the court‟s failure to determine his suitability. C.W. agreed and remanded the
matter for further appropriate proceedings given the prosecutor‟s failure to comply with
notice in a case where the minor was eligible for DEJ. (C.W., supra, 208 Cal.App.4th at
pp. 660-662.) In Luis B., the prosecutor completely failed to determine in the first
instance whether the minor was eligible for DEJ, never completed Form JV-750, and
never provided any type of notice to the minor. Luis B. also remanded the matter given
the prosecutor‟s failure to determine the minor‟s eligibility and comply with the notice
requirements. (Luis B., supra, 142 Cal.App.4th at pp. 1121-1123.)
       Neither C.W. nor Luis B. support appellant‟s arguments. Neither case involved a
minor who was determined to be ineligible for DEJ based on the alleged commission of
an offense within section 707, subdivision (b). Instead, the cases dealt with a prosecutor
who either found the minor eligible and failed to comply with the notice requirements
(C.W.), or completely failed to determine the minor‟s eligibility in the absence of any
argument that the minor was ineligible (Luis B.).
       Given the entirety of the record in this case, we conclude the prosecutor correctly
determined appellant was alleged to have committed an offense within section 707,
subdivision (b), she was ineligible for DEJ on that basis (§ 790, subd. (a)(2)), and the

                                             15.
prosecutor was not required to file Form JV-751. The prosecutor‟s erroneous mark of the
check box about Form JV-751 necessarily constitutes clerical error which does not
require remand.
II. The probation condition
       Appellant next contends the court improperly imposed the following condition of
probation because it is overbroad and unconstitutional.

       “Not to possess, own, or handle any firearm, knife, weapon, fireworks,
       explosives, or chemicals that can produce explosives.”
       The People agreed the condition is overbroad and should be modified to prohibit
appellant from possessing or using weapons that are dangerous or deadly as a matter of
law or from possessing other instrumentalities that are capable of being used in a
dangerous or deadly manner with the intent to so use them. (See, e.g., In re R. P. (2009)
176 Cal.App.4th 562, 568.) In her reply brief, appellant has not challenged the People‟s
suggested modification.
                                      DISPOSITION
       The probation condition which stated that appellant could not “possess, own, or
handle any firearm, knife, weapon, fireworks, explosives, or chemicals that can produce
explosives,” is modified to instead state:

              “Appellant is prohibited from possessing or using weapons that are
       dangerous or deadly as a matter of law or from possessing other
       instrumentalities that are capable or being used in a dangerous or deadly
       manner with the intent to so use them.”

       In all other respects, the judgment is affirmed.




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