208 Cal. App. 4th 654
Cal. Ct. App.2012Background
- C.W. appeals a ward-of-the-court finding; she was eligible for DEJ, but there is no record of notice to her, her parent/guardian, or counsel as required by statute and court rules.
- Prosecutor filed a petition under §602 on July 14, 2010 alleging five counts of second-degree commercial burglary and submitted a DEJ eligibility form (JV-750) that indicated eligibility but did not attach the required JV-751 notice.
- No DEJ eligibility notice was provided or discussed at early hearings; C.W. was represented by counsel, and the case progressed to hearings and continuances.
- Judgment and disposition occurred (May 17, 2011) with C.W. adjudged a ward and placed on probation with custodial weekend and residence with an aunt; DEJ was not considered.
- Court must assess both DEJ eligibility and suitability; here, notice of eligibility and the suitability inquiry were missing, so the findings and dispositional order are vacated and remanded for proper DEJ proceedings under §790 et seq. and Rule 5.800.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to notify of DEJ eligibility violated statutes and rules. | C.W. lacked DEJ notice. | Record silent on notice; presumption applies. | Notice was required; failure invalidates proceedings. |
| Whether the court was required to assess DEJ suitability. | Luis B. requires court to consider suitability after eligibility. | If not admitted, DEJ suitability may be excused. | Court must assess suitability regardless of admission. |
| Whether the matter should be remanded rather than upheld. | Record shows DEJ procedures not followed; remand needed. | Proceedings could be deemed compliant notwithstanding omissions. | Remand for full DEJ compliance. |
| Whether the absence of DEJ notice constitutes ineffective assistance issue to be raised via habeas. | Counsel may have failed to advise; could be ineffective assistance. | Issue not necessary to reach on appeal. | Not necessary to decide; remand resolves procedure. |
Key Cases Cited
- In re Luis B., 142 Cal.App.4th 1117 (2006) (court discretion on suitability after eligibility; mandatory procedures to announce eligibility and consider suitability)
- Martha C. v. Superior Court, 108 Cal.App.4th 556 (2003) (DEJ procedure and sealing; foundational DEJ framework)
- In re Kenneth J., 158 Cal.App.4th 973 (2008) (don’t require DEJ suitability where minor not advised of eligibility after notice and opts not to pursue DEJ)
- In re Usef S., 160 Cal.App.4th 276 (2008) (similar rule as Kenneth J. about notice and eligibility consequences)
- In re Spencer S., 176 Cal.App.4th 1315 (2009) (ineffective assistance concerns tied to DEJ notice; appeals addressed to preserve economy)