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In Re E.H., A Person Coming Under the Juvenile Court Law. v. E.H

December 3, 2010

IN RE E.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
E.H., DEFENDANT AND APPELLANT.



The opinion of the court was delivered by: Mauro, J.

In re E.H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

E.H. is a minor and a ward of the juvenile court. When she violated the terms of her probation, the juvenile court continued her probation with modifications. However, when she violated the terms of her probation again by selling methamphetamine, the juvenile court determined that she was ineligible for deferred entry of judgment (DEJ) because her probation had been revoked.

The minor contends that we should remand this case to the juvenile court for further proceedings, because (1) her probation was never revoked and hence the juvenile court erred in concluding that she was ineligible for DEJ, and (2) the juvenile court failed to investigate whether the Indian Child Welfare Act (ICWA) is applicable to her. We conclude that both of the minor's contentions have merit, and we will remand this case to the juvenile court for further proceedings.

BACKGROUND

In May 2009, the minor was adjudged a ward of the juvenile court and placed on formal probation based on her admission of four misdemeanor offenses. Later, in August 2009, the minor admitted two violations of probation and the court continued her on probation.

On November 23, 2009, the People filed a petition under Welfare and Institutions Code section 602, charging the minor with sale of methamphetamine. At the same time, the People filed a determination of eligibility for deferred entry of judgment, asserting that the minor was ineligible for DEJ because her probation had been revoked. In December 2009, the minor admitted the drug sale offense and also admitted that the offense constituted a violation of her probation. The juvenile court concluded that the minor was ineligible for DEJ because her probation had been revoked, continued her as a ward of the court, ordered her placed in a suitable group home, specified a maximum term of confinement of 5 years 2 months, and awarded 29 days custody credit. The minor filed a timely appeal from the judgment.

DISCUSSION

I

Welfare and Institutions Code section 790, subdivision (a), sets forth the eligibility requirements for DEJ. (In re T.P. (2009) 178 Cal.App.4th 1, 4.) Among other things, a minor is eligible if "[t]he minor's record does not indicate that probation has ever been revoked without being completed." (Welf. & Inst. Code, § 790, subd. (a)(4).) A probation violation is not the same thing as a probation revocation. (In re T.P., supra, 178 Cal.App.4th at p. 4.)

There is no indication in this record that the minor's probation was ever revoked. Instead, the court continued her on probation with modifications. Under the circumstances, the juvenile court was incorrect in concluding that the minor was ineligible for DEJ because her probation had been revoked.

The error requires reversal of the judgment and remand to the juvenile court for further proceedings. (In re T.P., supra, 178 Cal.App.4th at pp. 4-5.) The People agree. The juvenile court must determine not only whether the minor is "eligible" for DEJ (Welf. & Inst. Code, ยง 790, subd. (a)), but also whether the minor is "suitable" for DEJ. ...


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