(Super. Ct. No. JV127936)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The minor, D.L., appeals from the juvenile adjudications finding he committed two burglaries in May 2010. His sole contention on appeal is that the juvenile court erred in failing to hold the required hearing to consider his suitability for deferred entry of judgment (DEJ). We agree and shall reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
On August 30, 2010, a juvenile wardship petition was filed charging 15-year-old D.L. with two counts of residential burglary. (Pen. Code, § 459.) On September 7, 2010, the prosecuting attorney filed a determination of eligibility for DEJ, along with a citation and written notification for DEJ, finding D.L. eligible for DEJ. (Welf. & Inst. Code, § 790 et seq.) These notices complied with the statutory requirements of Welfare and Institutions Code sections 790 and 791. The citation stated, "At the hearing the court will consider whether or not to grant a Deferred Entry of Judgment." The citation did not, however, provide notice of a date when the hearing to consider D.L.'s DEJ suitability would be conducted. The probation department filed a report on September 7, 2010, and noted D.L. was eligible for DEJ. The report went on to conclude that D.L. was not suitable for DEJ, as he had appeared before the court relative to 10 charges within a short period of time, and had issues with alcohol, school attendance and behavior.
D.L. appeared with his father at the September 10, 2010 settlement conference hearing. At the hearing, the prosecution filed an amended subsequent petition, adding an allegation that D.L. had received stolen property. (Pen. Code, § 496, subd. (a).) The court continued the settlement conference hearing to September 24, 2010, at which time, at defense counsel's request, the court scheduled a trial readiness conference for November 23, 2010, and a contested jurisdiction trial for November 24, 2010. There was no mention on the record of D.L.'s suitability for DEJ. At the trial readiness conference on November 23, 2010, counsel indicated they were ready to proceed to trial. That same day, without a hearing, the court found D.L. was eligible but not suitable for DEJ, and the trial date was confirmed.
The following day, D.L. entered denials to each of the allegations in the amended subsequent petition. Following a contested jurisdictional hearing, the receiving stolen property allegation was dismissed for insufficient evidence and the court sustained the allegations that D.L. had committed two burglaries. The court calculated D.L.'s maximum period of confinement at eight years four months, including his priors, placed D.L. on probation and ordered him to serve 102 days in a youth detention facility.
On appeal, D.L. contends the juvenile court erred in failing to hold the required DEJ hearing. The People respond that the trial readiness conference constituted the DEJ hearing and D.L.'s failure to challenge the "summary nature of the court proceeding" forfeits the claim of error. We agree with D.L.
The DEJ statutes "empower the court, under specified conditions, and upon the minor's admission of the allegations of the petition, to place the minor on probation without adjudging him or her to be a ward of the court." (In re Mario C. (2004) 124 Cal.App.4th 1303, 1308.) Under appropriate circumstances, the court may summarily grant DEJ to the minor. (Welf. & Inst. Code, §§ 790, 791; Cal. Rules of Court, rule 5.800.)*fn2 If the court does not summarily grant DEJ, it must conduct a hearing at which it must "consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties." (Rule 5.800(f).) It is the mandatory duty of the juvenile court to either grant DEJ summarily or examine the record, conduct a hearing, and determine whether the minor is suitable for DEJ, based upon whether the minor will derive benefit from "education, treatment, and rehabilitation." (Welf. & Inst. Code, § 791, subd. (b); In re Joshua S. (2011) 192 Cal.App.4th 670, 677.) While the court is not required to grant DEJ, it is required to "follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made." (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).)
As to both summary and non-summary grants of DEJ, where the minor has received notice informing him of his eligibility for DEJ, at "sometime prior to the court's grant of DEJ at the hearing on the minor's suitability for DEJ," the minor must admit the petition's allegations in lieu of a jurisdictional hearing. (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1322-1323; see also In re Kenneth J. (2008) 158 Cal.App.4th 973, 979-980 (Kenneth J.); In re Usef S. (2008) 160 Cal.App.4th 276, 285 (Usef S.).) The juvenile court is excused from its mandatory duty to hold a hearing if, after receiving notice of eligibility for DEJ, the minor nonetheless rejects DEJ consideration by contesting the charges. (Kenneth J.,supra, 158 Cal.App.4th at pp. 976-978; Usef S.,supra, 160 Cal.App.4th at pp. 281-283.)
Initially, we cannot agree with the People's claims that D.L.'s failure to object to the "summary nature of the court proceeding" and the lack of express findings forfeits his claims on appeal. This response misses the point of D.L.'s complaint. The complaint is not that the court did not state its reasons on the record, but rather that the court failed in its mandatory duty to conduct a hearing and consider, in addition to the information provided by the prosecuting attorney and probation department, "any other relevant material provided by the child or other interested parties." (Rule 5.800(f).) In the absence of even notice that a hearing on D.L.'s DEJ suitability was proceeding on a particular date, the court cannot have met its obligations. The cases cited by the People on waiver are inapposite as they involve a court's failure to state reasons for its discretionary choices. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) This case does not involve a failure to state reasons for a discretionary choice, ...