NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

THE COURT*

Appellant, V.G., was the subject of a juvenile wardship petition pursuant to Welfare and Institutions Code1 section 602 alleging that he possessed marijuana for purposes of sale in violation of Health and Safety Code section 11359, a felony. The juvenile court file also contained an undated determination of eligibility stating that appellant was eligible for deferred entry of judgment (DEJ) pursuant to Welfare and Institutions Code section 790, a citation and written notification for DEJ, and notices of hearing on the juvenile wardship petition. However, the file contained no proof of service for any of these documents.

At the jurisdictional hearing, appellant denied the allegation and waived time. There was no discussion regarding DEJ.

Thereafter, appellant admitted the drug sales allegation and was placed on home probation.

Appellant contends that the order sustaining the petition must be vacated and the matter remanded for further proceedings because he did not receive notice of his DEJ eligibility. As discussed below, the record contains no evidence that appellant received the required DEJ eligibility notice. Accordingly, the order will be set aside and the matter remanded to the juvenile court for further proceedings.

DISCUSSION

Under section 790 et seq., 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 and, after the successful completion of a term of probation, the court will dismiss the charges. The underlying arrest is deemed never to have occurred and any records of the juvenile court proceedings are sealed. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)

To be admitted to the DEJ program, a minor must meet the eligibility requirements under section 790, subdivision (a). (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 560.) The prosecuting attorney has the duty to assess the minor's eligibility for DEJ and to provide the minor with written notification of the DEJ procedures and an explanation of the program. (§§ 790, subd. (b), 791, subd. (a); In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) Once eligibility is established, the juvenile court must determine whether the minor is suitable for DEJ. (In re Usef S. (2008) 160 Cal.App.4th 276, 284.) The court is not required to ultimately grant DEJ, but is required to exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made. (In re Luis B., supra, 142 Cal.App.4th at p. 1123.) Nevertheless, if the minor does not admit the charges in the petition or waive a jurisdictional hearing, the juvenile court is not required to determine the minor's eligibility for DEJ. (In re Kenneth J. (2008) 158 Cal.App.4th 973, 979-980.)

Appellant contends that the dispositional order must be vacated and the matter remanded for further proceedings because the statutory notice requirements were not met. According to appellant, there is no evidence in the record establishing that he received the required written notification of the DEJ procedures or that his custodial parent was personally served with the citation and written notification for deferred entry of judgment as required by section 792 and California Rules of Court, rule 5.800(c).

Respondent counters that copies of a notice of hearing, citation and written notification for deferred entry of judgment were provided to appellant, his parent, and his attorney. Respondent bases this contention on an affidavit from a juvenile court clerk stating that the juvenile court procedure is to file the required documents as a packet and then mail a copy to the minor and his or her parent and put a copy in the minor's attorney's box at the clerk's office, without a proof of service. However, this affidavit is not part of the appellate record. Respondent further argues that, if a document is in the juvenile court file, it is presumed that the clerk's office properly noticed appellant, his attorney, and his parent. (Evid. Code, § 664.) Moreover, respondent contends that appellant waived the opportunity for a DEJ hearing when he denied the charges.

As discussed above, the requirement that a minor and his or her parents be provided notice of the DEJ program is mandatory. In fact, the citation and written notification for deferred entry of judgment must be personally served on the minor's custodial parent at least 24 hours before the hearing. (§ 792; Cal. Rules of Court, rule 5.800(c).) Here, however, there is no evidence in the record that this notice requirement was met. Contrary to respondent's position, an affidavit from a juvenile court clerk that the regular practice is to mail the minor and his or her parents a packet without a proof of service is not evidence that appellant and his parent were served with notice. Further, it would be inappropriate to apply the official duty presumption of Evidence Code section 664 to this procedural requirement. It is critical under the statutes that the minor and his or her parents actually receive notice of the DEJ program. Finally, appellant could not waive the opportunity for a DEJ hearing unless he was aware of his eligibility for the program and knowingly rejected it. Accordingly, the matter must be remanded to the juvenile court for further proceedings.

DISPOSITION

The dispositional order is set aside and the matter is remanded to the juvenile court for further proceedings in compliance with Welfare and Institutions Code section 790 et seq. If as a result of those proceedings, the juvenile court grants deferred entry of judgment to appellant, it shall issue an order vacating the findings and orders. If the juvenile court denies deferred entry of judgment to appellant, it shall make its order continuing the judgment in effect. (In re Luis B., supra, 142 Cal.App.4th at pp. 1123-1124.)