NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

Appellant D.B., a minor, appeals from the judgment (dispositional order) entered after the court sustained three petitions. One petition was sustained following appellant's negotiated admission to an offense alleged in the petition; a later petition and a third petition were sustained following adjudications. As to all three petitions, the court at a single dispositional hearing ordered appellant placed in camp and awarded him predisposition credit. The court ordered appellant placed in camp for a maximum theoretical period of confinement of three years ten months. We reverse the judgment and remand the matter with directions.

FACTUAL and PROCEDURAL SUMMARY

On June 1, 2010, a petition was filed alleging that on or about March 22, 2010, appellant committed felony second degree commercial burglary (count 1) and petty theft (count 2).1 The prosecutor who signed the petition also signed an unfiled, undated "determination of eligibility" (capitalization omitted) JV-750 form (hereafter, JV-750 form) allegedly indicating appellant was eligible for deferred entry of judgment (DEJ).2

On August 5, 2010, a second prosecutor signed an unfiled JV-750 form allegedly indicating appellant was ineligible for DEJ. This prosecutor was the same one who signed the petition filed August 23, 2010, discussed post.

On August 20, 2010, a petition was filed alleging that on or about August 16, 2010, appellant committed felony grand theft from a person (Pen. Code, § 487, subd. (c); count 1) and possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b); count 2). The third prosecutor who signed this petition also signed an unfiled, undated JV-750 form allegedly indicating appellant was eligible for DEJ.

On August 23, 2010, the previously mentioned second prosecutor filed a petition which, as amended by interlineations, alleged that on or about July 11, 2010, appellant committed two counts of felony receiving stolen property (Pen. Code, § 496, subd. (a); counts 1 & 2), resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); count 3), possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b); count 4), and two counts of petty theft of lost property (Pen. Code, § 485; counts 5 & 6). None of the above mentioned JV-750 forms reflects whether the prosecutor provided a copy of said form to appellant or his attorney.

As to the petition filed on June 1, 2010, appellant, admitted count 2 in the petition, and the court sustained that petition as to that count only, indicated appellant was a person described by Welfare and Institutions Code section 602, and declared the offense a misdemeanor. The court dismissed count 1 pursuant to negotiations.

As to the petition filed on August 20, 2010, the court, following an adjudication, found true count 1, sustained the petition as to that count only, indicated appellant was a person described by Welfare and Institutions Code section 602, and declared the offense a felony. The court dismissed count 2 pursuant to a Welfare and Institutions Code section 700.1 suppression motion.

As to the petition filed on August 23, 2010, the court, following an adjudication, found true counts 3 through 6, inclusive, sustained the petition as to those counts only, and indicated appellant was a person described by Welfare and Institutions Code section 602. The court did not declare whether any of those offenses were felonies or misdemeanors. The court found not true counts 1 and 2.

On September 15, 2010, the court conducted a dispositional hearing as to all of the above sustained petitions. The court declared appellant to be a ward of the court under Welfare and Institutions Code section 602 and ordered him placed in camp. The court also awarded appellant 24 days of predisposition credit.

ISSUES

Appellant claims (1) the People erroneously informed him that he was ineligible for DEJ and (2) he is entitled to a total of 29 days of predisposition custody credit.

DISCUSSION

1. The Prosecutor and Trial Court Erroneously Failed to Follow Proper Procedures to Determine Whether Appellant Was Entitled to DEJ.

a. Applicable Law.

The DEJ provisions of Welfare and Institutions Code section 790, et seq. were enacted in March 2000 as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998. The sections provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a Welfare and Institutions Code 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 favorable recommendation from the probation department, the court is required to dismiss the charges. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1121-1122 (Luis B.).)

To be admitted to the DEJ program, a minor must be eligible under Welfare and Institutions Code section 790, subdivision (a).3 (Luis B., supra, 142 Cal.App.4th at p. 1122.) California Rules of Court, rule 5.800(b)4 pertains to the eligibility determination. That rule provides, "(1) Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review the child's file to determine if the requirements of [Cal. Rules of Court, rule 5.800(a)] are met. If the prosecuting attorney's review reveals that the requirements of (a) have been met, the prosecuting attorney must file Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV-750) with the petition. [¶] (2) If the court determines that the child is eligible and suitable for a deferred entry of judgment, and would derive benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment."

California Rules of Court, rule 5.800(e), provides, "If 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 Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV-750)."

The trial court has the ultimate discretion to rule on the suitability of the minor for DEJ after consideration of the factors specified in California Rules of Court, rule 5.800, and Welfare and Institutions Code section 791, subdivision (b), and based upon the standard of whether the minor will derive benefit from education, treatment, and rehabilitation, rather than from a more restrictive commitment. (Cf. Luis B., supra, 142 Cal.App.4th at p. 1123.) The court may grant DEJ to the minor summarily under appropriate circumstances (Cal. Rules of Court, rule 5.800(d)) but, absent a summary grant, the court must conduct a hearing at which "the court 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." (Cal. Rules of Court, rule 5.800(f).)

While the court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and either (1) furnish notice of eligibility with the petition, or (2) furnish notice of ineligibility, is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make the final determination regarding education, treatment, and rehabilitation. (Luis B., supra, 142 Cal.App.4th at p. 1123; Welfare and Institutions Code section 791, subdivision (b); Cal. Rules of Court, rule 5.800(b), (d), (f).) The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made. (Luis B., supra, 142 Cal.App.4th at p. 1123.)

b. Application of the Law to This Case.

(1) The Prosecutor and Trial Court Erred in Connection with the Petitions Filed on June 1, 2010, and August 20, 2010.

Welfare and Institutions Code section 790, subdivision (b), states, in relevant part, that "If the minor is found eligible for deferred entry of judgment, 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." (Italics added.) Similarly, California Rules of Court, rule 5.800(b)(1), states, in relevant part, that "If the prosecuting attorney's review reveals that the requirements of [Cal. Rules of Court, rule 5.800(a)] have been met, the prosecuting attorney must file Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV-750) with the petition." (Underscoring added.)

As to the petitions filed on June 1, 2010, and August 20, 2010, the prosecutor who filed each petition signed an unfiled, undated JV-750 form allegedly indicating appellant was eligible for DEJ. However, because the forms are unfiled (and because the record fails to demonstrate that said prosecutors stated for the record the grounds upon which the eligibility determination was based), the prosecutors, as to each such form, erroneously failed to comply with Welfare and Institutions Code section 790, subdivision (b). Similarly, because the forms are unfiled, said prosecutors erroneously failed to comply with California Rules of Court, rule 5.800(b)(1).

In light of the above, and on this record, we have no way of knowing whether the above unfiled JV-750 forms reflect tentative, as opposed to final, eligibility determinations by the prosecutor, or whether the prosecutor ever made the court aware of the alleged eligibility determinations reflected in those forms. Moreover, because each form is undated (despite the fact that each form calls for insertion of a date), we have no way of correlating the alleged eligibility determinations contained in those forms with the above two petitions, other than by the insufficient fact that, in the clerk's transcript, each JV-750 form is placed immediately after a petition.

Further, as to each of the petitions filed on June 1, 2010, and August 20, 2010, if appellant was found eligible for DEJ, Welfare and Institutions Code section 790, subdivision (b) required that the prosecutor file a declaration or state grounds for the eligibility determination, and "make this information available to the minor and his or her attorney." Nothing in the JV-750 forms as to these two petitions reflects the prosecutor complied with the above quoted requirement. The prosecutor as to the petitions filed on June 1, 2010, and August 20, 2010, erroneously failed to comply with the requirements of Welfare and Institutions Code section 790, subdivision (b) and California Rules of Court, rule 5.800(b)(1) as to those petitions.

As mentioned, the DEJ program provides a procedure by which, in lieu of jurisdictional and dispositional hearings, the minor admits the allegations in the petition, waives time for pronouncement of judgment, and entry of judgment is deferred. (Luis B., supra, 142 Cal.App.4th at pp. 1121-1122.) Because the prosecutor erroneously failed to comply with the requirements of Welfare and Institutions Code section 790, subdivision (b) and California Rules of Court, rule 5.800(b)(1), the trial court subsequently erred by conducting a contested jurisdictional hearing as to the petition filed on August 20, 2010, by conducting a dispositional hearing as to that petition and the petition filed on June 1, 2010, by failing to determine whether appellant was suitable for DEJ as to those two petitions, and by failing to grant or deny DEJ as to those petitions. (Luis B., supra, 142 Cal.App.4th at pp. 1120, 1121, 1123.)

(2) The Prosecutor and Trial Court Erred in Connection with the Petition Filed on August 23, 2010.

Rule 5.800(e), provides, "If 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 Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV-750)." As to the petition filed on August 23, 2010, the prosecutor who filed this petition also signed, on August 5, 2010, an unfiled JV-750 form allegedly indicating appellant was ineligible for DEJ. However, the form does not indicate whether the prosecutor provided a copy of the form to "the child, and the child's attorney" within the meaning of the above rule. The prosecutor as to the petition filed on August 23, 2010, therefore erroneously failed to comply with, inter alia, the requirements of California Rules of Court, rule 5.800(e).5 Moreover, as a result, the trial court erred by conducting a contested jurisdictional hearing, and a dispositional hearing, as to that petition, by failing to determine whether appellant was suitable for DEJ as to that petition, and by failing to grant or deny DEJ as to that petition.

(3) Concluding Remarks.

Respondent concedes the judgment must be reversed and the matter must be remanded to permit compliance with the DEJ procedure. Our disposition will return this case to the status quo ante to permit the prosecutor and trial court to fulfill their responsibilities and to permit the trial court to conduct further proceedings accordingly. (Cf. Luis B., supra, 142 Cal.App.4th at pp. 1123-1124.)

We express no opinion as to (1) whether appellant is eligible and/or suitable for DEJ, or (2) which option, i.e., granting, or denying, DEJ, the trial court should select. There is no need to address appellant's predisposition credit claim; we are confident that if, following remand, the trial court denies DEJ, the trial court will then award appropriate predisposition credit.

DISPOSITION

As to the petition filed on June 1, 2010, the negotiated admission by appellant that he committed the offense alleged in count 2 is set aside, the trial court's order dismissing count 1 is vacated, and said count 1 is reinstated; as to the petition filed on August 20, 2010, the trial court's true finding as to count 1 is reversed, the trial court's order dismissing count 2 is vacated, and said count 2 is reinstated; as to the petition filed on August 23, 2010, the trial court's true findings as to counts 3 through 6, inclusive, are reversed, the trial court's not true findings as to counts 1 and 2 are stricken; and, as to all three petitions, any order sustaining a petition, and any jurisdictional orders, are vacated, and the judgment (dispositional order) is reversed.

The matter is remanded with directions to the People and the trial court to comply with their respective duties prescribed by the Welfare and Institutions Code and the California Rules of Court pertaining to DEJ eligibility and/or suitability determinations, and with directions to the trial court to grant or deny appellant DEJ. In the event the trial court grants DEJ, the trial court will conduct further proceedings accordingly. In the event the trial court denies DEJ, the status of this matter will then be deemed to be as if this court's disposition set forth in the immediately preceding paragraph had not been made, and the judgment will then be deemed reinstated, except that the trial court's previous order awarding predisposition credit will then be deemed vacated, and the trial court shall then award appropriate predisposition credit.

CROSKEY, Acting P. J. and ALDRICH, J., concurs.