Opinion
C.W. appeals an order declaring her a ward of the court. Although she was eligible for the statutory deferred entry of judgment (DEJ) program (Welf. & Inst. Code,
The Contra Costa County District Attorney filed a petition pursuant to section 602 on July 14, 2010, alleging C.W. had committed five felony counts of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) at the Macy’s store in Antioch. On that same date, the district attorney filed a “Determination of Eligibility, Deferred Entry of Judgment—Juvenile” (form JV-750) statement. The district attorney checked all of the boxes indicating that C.W. was eligible for DEJ, but did not check the box indicating that a “Citation and Written Notification for Deferred Entry of Judgment—Juvenile” (form JV-751) was attached.
At C.W.’s first court appearance on July 28, 2010, the juvenile court referred her to the public defender.
On October 27, 2010, C.W.’s counsel advised the court that there was “an outstanding offer” in the case that “involves pleading to some things, other things being dismissed, but agreeing to make restitution on those other things.” At a hearing on November 17, 2010, C.W.’s counsel reported that the case was being assigned to another public defender; counsel also advised the court that he was still “in the process of obtaining a number of discovery items, including surveillance videos.” On December 14, 2010, the court granted the request of C.W.’s newly assigned public defender for an additional continuance because the surveillance videotapes had not yet been received.
On January 12, 2011, a public defender who was appearing on behalf of C.W.’s newly assigned counsel, reported that copies of the surveillance videotapes had been received, but C.W. had not yet reviewed them with her attorney. At a hearing on February 1, 2011, C.W.’s counsel indicated that C.W. had reviewed the videotapes, and that the matter should be set for a contested jurisdictional hearing.
On March 9, 2011, the juvenile court sustained four of the five commercial burglary counts, dismissing one count as not true. At the May 17, 2011
n. DISCUSSION
C.W.’s primary contention on appeal is that the juvenile court failed to exercise its discretion to determine whether she was suitable for DEJ. The Attorney General does not dispute that the court failed to determine whether DEJ would be a suitable disposition for C.W., but argues that no such determination was required in this case because C.W. never admitted the petition. We begin our analysis by setting forth the substantive and procedural requirements for granting DEJ.
The DEJ provisions of section 790 et seq. “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).)” (Martha C. v. Superior Court (2003)
The determination of whether to grant DEJ requires consideration of “two distinct essential elements of the [DEJ] program,” viz., “eligibility” and “suitability.” (In re Sergio R. (2003)
Once the threshold determination of eligibility is made, the juvenile trial court has the ultimate discretion to rule on the minor’s suitability for DEJ. (In re Luis B. (2006)
Here, the parties agree that the prosecuting attorney filed with the wardship petition, a form JV-750 in which he stated he had determined C.W. was eligible for DEJ. The prosecutor, however, did not check the box that form JV-751 was attached, and failed to otherwise notify C.W. of the detailed advisements required by section 791, subdivision (a)(1) through (6). Furthermore, the court failed to notify C.W.’s custodial parent/guardian of C.W.’s eligibility for DEJ pursuant to section 792.
Nevertheless, the Attorney General argues that because there is no affirmative evidence in the record C.W. did not receive notice of her DEJ eligibility, she must be presumed to have received such notice. In support of this assertion, the Attorney General cites the statutory presumption “that official duty has been regularly performed” (Evid. Code, § 664) and the maxim that a lower court’s orders are presumed correct as to matters on which the record is silent. (See, e.g., In re Julian R. (2009)
Here, however, we do not have a completely silent record. Rather, the record affirmatively reflects that the prosecuting attorney did not check the box indicating that a citation and notification regarding DEJ (form JV-751) was attached. Moreover, 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).
The Attorney General counters these glaring deficiencies in the record by noting that C.W. was represented by a delinquency practitioner. Based on this fact, the Attorney General argues we must presume that C.W.’s counsel was aware, and informed C.W., that the prosecutor had determined she was DEJ-eligible. (See People v. Sullivan, supra,
As the Attorney General implicitly acknowledges, however, if C.W.’s trial counsel did not advise her regarding her DEJ eligibility before she proceeded to the contested jurisdictional hearing, that omission could constitute a ground for a habeas corpus petition asserting ineffective assistance of counsel. In the interest of judicial economy, it is both appropriate and preferable for us to consider the matter on direct appeal. (See In re Spencer S. (2009)
C.W. contends the juvenile court failed to exercise its discretion when it did not determine her suitability for DEJ. She relies primarily on Luis B., supra,
Here, the Attorney General suggests that the juvenile court was not required to make a threshold suitability determination in this case because C.W. never admitted any allegations in the petition. In support of this position, the Attorney General relies on In re Kenneth J. (2008)
In sum, because the juvenile court did not conduct the necessary inquiry into C.W.’s suitability for DEJ, we will set aside its findings and dispositional order, and remand the case for further proceedings in compliance with the statutory scheme. (See Luis B., supra, 142 Cal.App.4th at pp. 1123-1124.) This result makes it unnecessary for us to address the other contentions C.W. raises on appeal. (Id. at p. 1124, fn. 4.)
III. DISPOSITION
We set aside the juvenile court’s findings and dispositional order. The matter is remanded for further proceedings in compliance with section 790 et seq. and California Rules of Court, rule 5.800, including notice to the minor of her eligibility for deferred entry of judgment, as required by section 791.
Reardon, Acting P. J., and Rivera, J., concurred.
A petition for a rehearing was denied August 15, 2012, and the opinion was modified to read as printed above.
Notes
Retired Associate Justice of the Court of Appeal, First Appellate District, Division 4, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All undesignated statutory references are to the Welfare and Institutions Code.
On our own motion, we augmented the record with the transcript from the July 28, 2010 hearing. (See Cal. Rules of Court, rules 8.407(b), 8.410(b)(1).)