In re Bryan C. CA1/5

Filed 11/12/13 In re Bryan C. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re BRYAN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, A138290 v. BRYAN C., (Contra Costa County Super. Ct. No. J12-01548) Defendant and Appellant.

Bryan C. (appellant) appeals from a judgment declaring him a ward of the juvenile court and placing him on probation with home supervision after he pled no contest to an allegation he had carried a concealed firearm on his person. (Welf. & Inst. Code, § 602; Pen. Code, § 25400, subd. (a)(2); Cal. Rules of Ct., rule 5.778(e).)1 He contends the case must be remanded for a hearing on his suitability for deferred entry of judgment (DEJ) under section 790 et seq., and further argues the failure to follow the statutory procedures for determining his suitability deprived him of due process of law. The Attorney General agrees the case must be remanded so the court can comply with the statutory requirements for determining suitability. We remand the case for this purpose.

1 Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. Further rule references are to the California Rules of Court. 1

FACTS AND PROCEDURAL HISTORY2 On November 1, 2012, appellant was contacted by officers of the Antioch Police Department after he was reported to have been showing off a gun in a restroom of his high school. No weapons were found when appellant was searched, but the principal of the school told the officers appellant had passed his backpack to another student. That student was detained, and an unloaded .22-caliber revolver was found in the backpack he was carrying. After appellant was read his rights under Miranda v. Arizona (1966) 384 U.S. 436, he explained he was having problems with a Norteño gang member and had been beaten up in September 2012. Appellant said he was not a Sureño, though some of his friends were. A wardship petition was filed under section 602 alleging appellant had committed two felony offenses: possessing a firearm in a school zone in violation of Penal Code section 626.9, subdivision (b), and carrying a concealed firearm on his person in violation of Penal Code section 25400, subdivision (a)(2). The district attorney’s office filed a JV-150 form stating appellant was eligible for DEJ. It does not appear either appellant or his parents were served with any notice regarding his eligibility for DEJ or the details of the DEJ procedure. At the arraignment on the petition, defense counsel noted appellant was eligible for DEJ and asked the court to refer him for a determination of suitability. The court declined to do so, noting appellant “had a gun,” and “I think we need far more resources than are available under DEJ.” Appellant subsequently pled no contest to the concealed firearm count and was placed on probation with 120 days of home supervision with electric monitoring and 12 weekends at juvenile hall. DISCUSSION 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