NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

DETJEN, J.

Following a contested jurisdiction hearing, the juvenile court found true allegations that minor, appellant Victor C. received stolen property (count 1) and drove without a license (count 2). Minor was adjudged a ward of the court and placed on probation.

On appeal, minor contends (1) the prosecutor failed to notify minor and his mother of his eligibility for deferred entry of judgment (DEJ) and the court failed to consider whether he was suitable for DEJ, (2) the court did not demonstrate that it was aware of its discretion to declare count 1 a misdemeanor, and (3) there was insufficient evidence to sustain the finding on count 1.

We agree with minor regarding his first two contentions and remand to allow the juvenile court to consider whether minor is suitable for DEJ and to determine whether count 1 is a felony or misdemeanor. We reject minor's contention that there was insufficient evidence to sustain count 1.

FACTUAL AND PROCEDURAL HISTORIES

On July 9, 2010, Fresno police officers responded to a report of a car theft. Violet Johansen was the registered owner of a missing white 1987 BMW. She told the police officers the only person with permission to drive her car was her grandson, Eric Dreyer, and he was in the process of buying the car from her.

Dreyer told the police he was trying to buy the car from his grandmother and sell it at the same time. Dreyer reported that he met a person called "Weez" at the Parkland Hotel. Weez was interested in buying the car and Dreyer let him test drive it. Weez left with the car and Dreyer never saw it again. Johansen told the police she believed Dreyer was not telling the truth. At trial, Johansen testified that Dreyer was the primary driver of the car and she did not know if he allowed other people to borrow it. She did not know he had been trying to sell the car. She also testified that Dreyer told her the car had been stolen three or four days after it had disappeared.

On August 21, 2010, two Fresno police officers, Sharp and Valle-Sandoval, were patrolling downtown Fresno in a marked police car when they saw a white BMW change lanes and turn without signaling. They followed the car, which immediately pulled to the curb even though the officers had not turned on their lights or siren. The officers pulled over behind the car and questioned the driver, minor. Minor said he did not have a driver's license or paperwork for the car.

Officer Sharp saw wires hanging from the stereo and noticed the key in the ignition did not appear to fit as it extended out from the ignition and "the teeth of the key weren't fully inserted." He took the key from the ignition and tried to unlock the trunk and glove box, but the key did not work. The key did not open the car doors either.

Officer Valle-Sandoval read minor his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Minor told the officer that he bought the car from a person named Juan. Minor said he knew Juan because he sells bread in his neighborhood, but he did not know his last name. According to minor, Juan offered the car for $700, minor told Juan he only had $300 with him, and Juan took the payment and told him he could pay the rest later. Minor reported to Officer Valle-Sandoval that Juan told him not to move the car because he did not have papers and he was waiting for some "white dude" to give him the papers for the car. Minor also said that he had broken the original key in the ignition and that was why he was using a long key.

On August 24, 2010, the Fresno County District Attorney filed a two-count juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)1) against minor. In count 1, it was alleged that minor had received stolen property that belonged to Johansen (Pen. Code, § 496, subd. (a)), and in count 2, it was alleged that minor had unlawfully driven a motor vehicle on a highway without holding a valid driver's license (Veh. Code, § 12500, subd. (a)).

Minor denied the allegations. An adjudication hearing began on November 10, 2010.

Minor testified on his own behalf. He said the bread man and another white guy first offered to sell the BMW to his mother's boyfriend. After his mother's boyfriend said no, minor and his mother agreed to trade the mother's Ford Probe for the BMW. The BMW would belong to minor and his mother. (He testified, "it was part mine and part my mom's, the buying.") The "white dude" told minor he was going to come back in a week or two to deliver the paperwork for the car, but he never came back. The man selling the BMW took the Ford Probe, and minor and his mother kept the BMW. In addition, minor agreed to give $300 to his mother's boyfriend, who would give it back to his mother. Minor said the money was "to help out for the family to pay the bills."

Minor's mother and her boyfriend were "fine" with the deal. Minor testified, "[M]y mom's boyfriend asked him at least four or five times, is this stolen? Is this stolen? No. And he, the guy's all like, no, no, no. So, we got relieved, then he just said he was going to come back with the papers, and he never showed up." According to minor, this transaction occurred at least three or four weeks before he was questioned by the police on August 21, 2010.

As to why he told the police a different story about how he acquired the BMW, minor said he was nervous when the police officers asked him questions. He did not know what to tell them and told "something similar" to what had happened.

Minor testified that he did not know the car was stolen. He said that, some time before August 21, 2010, he went to the Department of Motor Vehicles to find out about the BMW but was told that information could only be given to the registered owner. The prosecutor asked him if he thought it was a little weird that the seller did not have paperwork for the car, and minor responded, "Not really, because at that point I didn't know ... what was, how, what were the process of getting a car or anything like that." Nor did he think it strange that the seller never returned with the paperwork. Minor thought the seller had "family problems or something" and he would come back sooner or later.

The first time minor drove the car was August 21, 2010. He explained, "I just got tired of waiting and waiting, really, to get the guy to come over with the papers, so we didn't really know what to do."

Minor's mother testified that she had traded her Ford Probe for the BMW. She said the seller of the BMW was a friend of the bread seller. She thought the bread seller's name was Jesus, but she did not know the name of the man selling the BMW. She did not think the car was stolen, and she was waiting for the man who had traded the BMW to come back with the paperwork so she could register the car.

On November 12, 2010, the court found both counts 1 and 2 true. On December 9, 2010, the juvenile court adjudged minor to be a ward of the court and placed him under the supervision of the probation department until June 7, 2011. The court also ordered minor to perform 50 hours of community service, submit an essay to probation on the subject of character, and pay a restitution fine.

DISCUSSION

I. Deferred Entry of Judgment

Minor argues that the prosecutor failed to give statutorily required notice of his eligibility for DEJ, and the juvenile court failed to consider whether he was suitable for DEJ. The People assert that appropriate notice of minor's eligibility for DEJ was given and that the juvenile court was not required to address DEJ suitability because minor contested jurisdiction.

Under the DEJ provisions of 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. 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) 108 Cal.App.4th 556, 558.)

There are "two distinct essential elements of the deferred entry of judgment program: the first, eligibility, which is found if all of `circumstances' listed in section 790, subdivision (a) are present; and the second, suitability, which requires a finding by the court that the minor will benefit from `education, treatment, and rehabilitation.'" (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.)

It is the duty of the prosecutor to assess the minor's eligibility for DEJ. (§ 790, subd. (b).) "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." (Ibid.) The prosecutor must file a "Determination of Eligibility—Deferred Entry of Judgment—Juvenile" (form JV-750) with the section 602 petition. (Cal. Rules of Court, rule 5.800(b)(1), italics omitted.) In addition, a "Citation and Written Notification for Deferred Entry of Judgment—Juvenile" (form JV-751) must be issued to the minor's custodial parent, guardian, or foster parent. (Id., rule 5.800(c), italics omitted.) "The form must be personally served on the custodial adult at least 24 hours before the time set for the appearance hearing." (Ibid.)

After the threshold determination of eligibility is made, the juvenile court "has the ultimate discretion to rule on the suitability of the minor for DEJ...." (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.)

In this case, the prosecutor determined minor was eligible for DEJ. The record shows the prosecutor prepared forms JV-750 and JV-751, which were filed with the court at the same time the petition was filed. However, there is no proof of service in the record demonstrating that minor and his mother were served either of these forms.

On August 25, 2010, minor appeared with counsel for the initial appearance and detention hearing before the juvenile court. Through counsel, minor acknowledged receipt of the petition, waived the reading of statutory and constitutional rights, and entered a denial. However, minor's counsel did not acknowledge receipt of notice of eligibility for DEJ (i.e., form JV-750), and during the hearing, the eligibility for DEJ was not mentioned by the court or prosecutor. In subsequent hearings, DEJ was not discussed, and nothing in the record shows the juvenile court ever considered whether minor was suitable for DEJ. On October 21, 2010, minor's counsel requested an adjudication date.

Minor argues that the record does not indicate he and his mother ever received the notice required under the statutes and California Rules of Court, rule 5.800. The People argue that the record demonstrates minor and his mother did receive appropriate notice. We are not persuaded by the People's interpretation of the record.

The People first assert that a copy of the citation and written notification (i.e., form JV-751), was attached to the petition. The record shows that three documents—(1) the petition, (2) form JV-750, and (3) form JV-751—were date stamped by the court at 9:45 a.m. on August 24, 2010. Nothing about the documents indicates that forms JV-750 and JV-751 were necessarily "attached" to the petition. Indeed, if the three documents had been stapled together, it is more likely there would have been only one date stamp for the collection of documents. The People note that the petition states four pages are attached. However, form JV-750 is one page and form JV-751 comprises two pages, for a total of only three pages. The petition is four pages long; it is possible the four pages refers to the pages that make up the petition itself.

Second, the People argue that on its face, the JV-751 form shows it was sent to minor's mother's address the day before the hearing. We do not agree. Form JV-751, the citation and written notification, does not have a proof of service. There is no signed verification on the form itself showing it was actually mailed to minor's mother.

Third, the People point to the probation officer's report, which recommended that the court find "[n]otice ha[d] been given as required by law." The People assert the juvenile court found the notice of hearing was served and argue that notification of minor's eligibility was "included" in the notice of hearing. This is not evidence that the notice requirements were met. As we have discussed, the record does not demonstrate that the DEJ forms were "attached" or "included" with the petition. We therefore reject the People's assertion that the record shows minor and his mother received the statutorily required notice of his eligibility for DEJ.

The People also note that minor requested a contested hearing, believing he had a defense to count 1. The People argue this case is therefore analogous to In re Kenneth J. (2008) 158 Cal.App.4th 973 and In re Usef S. (2008) 160 Cal.App.4th 276. However, both of those cases are distinguishable.

In both Kenneth J. and Usef S., the prosecutors found the minors were eligible for DEJ, and the minors received notice of those determinations. The minors then denied the allegations of the wardship petitions and requested contested jurisdictional hearings. (In re Kenneth J., supra, 158 Cal.App.4th at pp. 976-978; In re Usef S., supra, 160 Cal.App.4th at pp. 281-283.) In Kenneth J., the court held the juvenile court was not required to conduct a suitability hearing for a minor "who is advised of his DEJ eligibility, who does not admit the charges in the petition or waive a jurisdictional hearing, and who does not show the least interest in probation, but who insists on a jurisdictional hearing in order to contest the charges." (In re Kenneth J., supra, 158 Cal.App.4th at pp. 979-980.) The court found the minor's actions "were tantamount to a rejection of DEJ." (Id. at p. 980.) Similarly, in Usef S., the court held the minor "effectively rejected DEJ consideration when he denied the allegations against him and insisted on a contested jurisdictional hearing." (In re Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.) Thus, Kenneth J. and Usef S. stand for the proposition that a juvenile court is excused from its statutory duty to determine a minor's suitability for DEJ if the minor—after receiving notice of his eligibility for DEJ—nonetheless rejects DEJ consideration by contesting the charges.

In this case, however, the record does not show that minor received notice that he was eligible for DEJ. It cannot be said that minor rejected DEJ consideration if he was not even aware of his elibility for it. Consequently, the juvenile court was not excused from its duty to consider whether minor was suitable for DEJ.

Because the court did not conduct the necessary inquiry, we will set aside the findings and dispositional orders and remand the case for further proceedings in compliance with section 790 et seq. (In re Luis B., supra, 142 Cal.App.4th at p. 1123.) II. Failure to Declare Count 1 to be a Misdemeanor or Felony

Minor contends the juvenile court erred by failing to indicate that it was aware of its discretion to declare count 1, violation of Penal Code section 496, subdivision (a), a felony or misdemeanor. Minor contends the error requires remand, and the People agree that remand is appropriate in this case.

Section 702, in pertinent part: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." A violation of Penal Code section 496 is punishable as either a misdemeanor or a felony, a so-called "wobbler." (Id. at subd. (a).)

"The language of [section 702] is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]" (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) "[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony." (Id. at p. 1208.) However, remand is not required where the record shows "the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error." (Id. at p. 1209.)

Here, the juvenile court did not expressly refer to its discretion to declare count 1 a misdemeanor or otherwise indicate that it had exercised its discretion in determining the nature of the offense. Further, given minor's lack of criminal history, the circumstances of the offense, and the court's lenient disposition, the People do not assert that the juvenile court would have necessarily exercised its discretion to sentence minor to a felony. Under these circumstances, we will remand the case to the juvenile court to allow it to make the necessary designation. (In re Manzy W., supra, 14 Cal.4th at pp. 1210-1211.)

III. Sufficiency of the Evidence for Count 1

Finally, minor argues there was insufficient evidence to sustain the finding on count 1. We disagree.

A challenge to the sufficiency of the evidence in a juvenile proceeding is reviewed under the same substantial evidence standard that applies in an adult criminal proceeding. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.) "[W]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ibid.) It is the exclusive province of the trier of fact to determine the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Penal Code section 496, subdivision (a) provides, in pertinent part: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year."

Minor contends the evidence presented was insufficient to prove he knew the property in his possession was stolen. He points out that he was only 17 years old and had no criminal history that would indicate the sophistication required to identify the earmarks of a stolen car. In addition, he and his mother testified that they traded her car for the BMW, and he argues it is unlikely they would have traded their legitimately owned car for one they knew to be stolen.

"The knowledge element of receiving stolen property is normally proved not by direct evidence but by an inference from circumstantial evidence." (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) The knowledge element may be "inferred from the defendant's failure to explain how he came to possess a stolen item or his offer of an unsatisfactory explanation or from suspicious circumstances attendant upon his possession of the item." (Id. at pp. 1019-1020.)

Here, the juvenile court observed that the transaction was "highly unusual" and minor admittedly gave varying stories about how he acquired the car.

The court reasoned:

Further, when minor was found driving the BMW, there were wires hanging from the stereo and the long key he was using did not open the glove box, trunk, or doors—"suspicious circumstances" from which a trier of fact could infer minor's knowledge that the car was stolen. Taken together, the unusual circumstances of the alleged sale of the car to minor and his mother, minor's changing explanations about how he acquired the car, and the suspicious state of the car were substantial evidence from which a reasonable trier of fact could infer that minor knew the car was stolen.

DISPOSITION

The findings and dispositional orders are set aside and the matter is remanded to the juvenile court for further proceedings in compliance with section 790 et seq. (determination of DEJ suitability). If, as a result of those proceedings, the juvenile court grants DEJ to minor, it shall issue an order vacating the findings and orders. If minor does not admit the allegations of the petition or the juvenile court denies DEJ in the exercise of its discretion, then the juvenile court shall (1) exercise its discretion under section 702 and expressly declare whether it is determining count 1 to be a felony or misdemeanor and (2) otherwise reinstate its previous jurisdictional and dispositional orders.

WISEMAN, Acting P.J. and GOMES, J., concurs.