Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD059179. Hugo J. Loza, Commissioner.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
A juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) was filed in the Superior Court of Tulare County alleging appellant A.E. (born 1990) committed count I, carrying a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)); count II, unlawful manufacture or possession of an instrument and weapon, a screwdriver (Pen. Code, § 12020, subd. (a)(1)); and count III, participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). After a contested jurisdictional hearing, the court found the three counts true. Appellant was declared a ward of the court and placed on probation subject to electronic monitoring at his parents’ house.
All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, appellant contends his motion to suppress should have been granted because he was illegally detained and searched. He also contends the matter must be remanded because the juvenile court failed to consider his suitability for the deferred entry of judgment (DEJ) program and failed to declare whether the three offenses were felonies or misdemeanors.
We will find the trial court properly denied defendant’s motion to suppress and determined his offenses were felonies but remand the matter for further appropriate proceedings pursuant to the provisions of the DEJ program.
The court conducted a contested jurisdictional hearing, but appellant does not raise any issues as to the sufficiency of the evidence in support of the three counts. We will thus limit our factual analysis to the evidence adduced at the suppression hearing. Unless otherwise indicated, all citations to the reporter’s transcript are from the suppression hearing.
Shortly before 12:35 p.m. on February 19, 2008, Visalia Police Officer Gilbert Torres was on patrol in a marked unit when he received a dispatch that five male subjects wearing gang attire were tagging a wall in the area of LaVida and Bollinger. Torres had spent four years in the police department’s gang unit during which he attended many gang workshops and conferences, contacted and arrested numerous gang members, and testified as an expert in gang-related cases. Torres knew the LaVida and Bollinger area was known for Sureno gang activity and graffiti, there had been recent problems in the neighborhood which had been in the news, and the local Sureno gang claimed the color blue and the number 13.
When Torres was about a block to a block and a half from the reported tagging location, he saw four Hispanic subjects walking on the sidewalk. As he approached in his patrol car, one of the subjects removed a blue bandanna from his back waist area and tossed it “in an attempt to avoid me seeing it.” Torres testified he was about 25 feet away and visible to the subjects when the individual tossed the blue bandanna.
Torres testified the subjects were in an area known for Sureno gang activity. He suspected the subjects were involved in gang activity and the tagging incident because the individual “tossed the blue bandanna in an attempt to avoid me seeing it, which I identified with gang clothing or gang attire.”
Torres pulled over to the curb, stepped out of his patrol car, directed the four subjects to sit on the curb, and called for backup assistance because he was by himself and about to speak with four people. The group consisted of appellant, two other males, and one female, and they complied with his orders. Appellant was wearing a black and gray checked coat, a black shirt, and blue jeans. Appellant was not the subject who threw the blue bandanna and did not display any blue clothing.
Torres and his backup officer conducted patdown searches of the four subjects for purposes of officer safety. The patdown search of appellant revealed a butcher knife with a 10-inch blade, a screwdriver with a sharpened tip, a small cutting device with a curved fixed blade and blue handle, and a blue felt marker pen in his pockets. Torres testified the blue marker was a common item used for tagging. The officers recovered one pair of brass knuckles in the bushes about 25 to 35 yards north of where the subjects were detained.
DISCUSSION
I.
APPELLANT WAS LAWFULLY DETAINED AND SEARCHED
Appellant contends he was illegally detained and searched by Officer Torres, and the juvenile court should have granted his motion to suppress the evidence seized during the patdown search. We will review the parties’ arguments and the court’s ruling made at the suppression hearing and then address whether appellant was lawfully detained and searched.
A. Background
Prior to the contested jurisdictional hearing, appellant filed a motion to suppress evidence pursuant to section 700.1 and argued Officer Torres lacked reasonable suspicion to detain him because appellant’s mere presence in an area known for gang activity was insufficient to support even a limited detention. Appellant further argued the patdown search was unreasonable because Torres lacked any specific and articulable facts that the search was necessary for purposes of officer safety. The prosecution filed opposition and argued both the detention and search were lawful.
Section 700.1 applies to motions brought in juvenile court to suppress evidence obtained as the result of an unlawful search or seizure and is the counterpart to Penal Code section 1538.5 in adult proceedings. (In re Ricardo C. (1995) 37 Cal.App.4th 431, 435.)
The juvenile court conducted an evidentiary hearing for the suppression motion at which Officer Torres testified as set forth ante. After the presentation of evidence, the prosecution stipulated that appellant was detained but argued the detention and search were supported by reasonable suspicion because Torres was in a known gang neighborhood, he responded to a dispatch of gang-related vandalism, he observed the four subjects within moments of receiving the dispatch, the subjects were very close to the location of the tagging incident, and one of the four subjects threw away a blue bandanna as his patrol car approached. Torres properly called for backup assistance since he was outnumbered in a known gang neighborhood, and the patdown searches were reasonable for purposes of officer safety given the nature and circumstances of the detention in a known gang area.
Appellant argued the detention was illegal because the dispatch reported five males were involved in the tagging incident, but appellant was with two males and one female in the middle of the afternoon, he was not wearing gang colors, and he was not at the scene of the alleged tagging. Appellant further argued that it was not unlawful for one subject to throw away the blue bandanna into the bushes, and that conduct did not support the detention. Appellant also argued the patdown search was unlawful because there was no articulable suspicion that appellant or his companions were carrying weapons, and the dispatch was for vandalism rather than a violent crime.
The court denied appellant’s suppression motion and found his detention was supported by reasonable suspicion. The court stated: “[There] were four suspects instead of five, Hispanic juveniles and at least one... blue bandanna so the question is whether or not that information would be sufficient to justify the detention, whether or not the discarding of the bandanna is a significant factor in whether or not that constitutes some sort of, the type of furtive gesture that is referred to in the case law as justification for a detention.”
The court further found:
“[Appellant] was located near the area where this graffiti was alleged to have been done. There were four individuals as opposed to five, but I think there’s no question that there’s a number there. [¶] What’s significant in this case too is the issue of this throwing away of the blue bandanna.... [¶] The police officers here more than fulfilled the mandate of the law with respect to detentions, and this seems to me that the circumstances in this case are that the officer... was looking for five individuals, blue bandanna. These individuals were coming from LaVida, which is the area from where he was looking. He was going to LaVida and Bollinger. He was looking for this blue bandanna. He was looking for individuals associated with blue, and when he observed one of these minors discard the blue bandanna, I think when you put all those factors together, I think you have sufficient reasonable suspicion to believe that these individuals may be connected to that crime.”
The court also found Torres’s patdown search of appellant was reasonable based on the officer’s “prior knowledge of this being an area that was known to be associated with Surenos and that gang members might be in possession of weapons and it would be a danger to him or others in the area.” The court found: “[I]n this case we have four individuals, one of which, at least is in possession of a blue bandanna. For whatever reason that minor or that individual discards the blue bandanna, which to me is the classic furtive gesture in the sense that he sees the officer, he discards the bandanna, that alerts the officer to something going on here that indicates possible criminal activity. [¶] The officer is aware that this area is a gang area, that these minors are associated with Surenos because of the blue color....”
The court concluded the cursory patdown search was “more than warranted” under the circumstances.
B. Analysis
On appeal, appellant asserts the juvenile court improperly denied his suppression motion, and that both the detention and patdown search were unlawful and not supported by reasonable suspicion. “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 (Terry); People v. Maury (2003) 30 Cal.4th 342, 384.) However, an officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by specific and articulable facts, that criminal activity is afoot and that the person to be stopped is engaged in that activity, even if the officer lacks probable cause to arrest. (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124 (Wardlow); United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow); Terry, supra, 392 U.S. at p. 21; People v. Souza (1994) 9 Cal.4th 224, 237-238.) Such temporary investigative detentions, known as “Terry stops,” are permitted “notwithstanding the Fourth Amendment’s requirements of probable cause and a search warrant, because they are ‘limited intrusions’ that are ‘justified by special law enforcement interests.’ [Citations.]” (People v. Bennett (1998) 17 Cal.4th 373, 387; Berkemer v. McCarty (1984) 468 U.S. 420, 439.)
“The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) The concept of reasonable suspicion cannot be reduced to “‘a neat set of legal rules.’ [Citation.]” (Sokolow, supra, 490 U.S. at p. 7.) It “can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.]” (People v. Wells, supra, 38 Cal.4th at p. 1083.) “The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.”’ [Citation.] The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. [Citation.]” (Sokolow, supra, 490 U.S. at p. 7.)
“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations.]” (Adams v. Williams (1972) 407 U.S. 143, 146.) Moreover, an officer’s expertise “can attach criminal import to otherwise innocent facts. [Citations.]” (People v. Limon (1993) 17 Cal.App.4th 524, 532.) “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.]” (Wardlow, supra, 528 U.S. at p. 124.) “While a person cannot be detained for mere presence in a high crime area without more [citations], this setting is a factor that can lend meaning to the person’s behavior. [Citations.]” (People v. Limon, supra, 17 Cal.App.4th at p. 532; see also Wardlow, supra, 528 U.S. at p. 124.) “Even if the circumstances are also consistent with innocent activity, a detention will be justified if the combination of circumstances also supports a reasonable suspicion of criminal activity. [Citation.]” (People v. Daugherty (1996) 50 Cal.App.4th 275, 287.)
In addition, when an officer detains an individual, the officer may conduct a patdown search of the person’s outer clothing if the officer has an objectively reasonable suspicion that the person is armed and dangerous, regardless of whether the officer has probable cause to arrest. (Terry, supra, 392 U.S. at pp. 27, 30; People v. Lopez (2004) 119 Cal.App.4th 132, 135-136.) The test for a patdown search is whether “a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger. [Citation.]” (Terry, supra, 392 U.S. at p. 27.) The officer need not be absolutely certain that the individual is armed. (Ibid.)
“The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. [Citations.]” (People v. Dickey (1994) 21 Cal.App.4th 952, 956.) “The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.]” (Id. at p. 957.) The Fourth Amendment has never been interpreted to “‘require that police officers take unnecessary risks in the performance of their duties.’ [Citation.]” (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.)
The juvenile court herein denied appellant’s suppression motion based upon In re Stephen L. (1984) 162 Cal.App.3d 257 (Stephen L.) and found it factually similar to the instant case. In Stephen L., officers assigned to a gang detail encountered people standing near a park wall which had been freshly vandalized with gang graffiti. The area was a known hangout for a particular gang, the police had received complaints of vandalism and graffiti in the area, and four of the six individuals, excluding the minor, were known members of that gang. When the officers approached, the individuals split into two groups and walked in different directions. The officers detained them, conducted patdown searches, and the minor was found in possession of a knife. (Stephen L., supra, 162 Cal.App.3d at pp. 259-260.)
Stephen L. found ample cause for the detention and patdown searches based upon the large number of individuals, the knowledge that gang members carry weapons, and the minor’s flight upon seeing officers. (Stephen L., supra, 162 Cal.App.3d at p. 260.) “Failure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity and weapon usage is known from the officers’ past experience would be most careless. Furthermore, it is the character of the incident and not the degree of acquaintanceship with suspects which should determine the conduct of a conscientious police officer. (Thus, it certainly should not be contended that the police officers were entitled to patdown search only the four suspects they previously knew and not the Minor who was an integral part of the group found next to the vandalized wall.)” (Ibid.)
Stephen L. acknowledged that “‘hunch’” searches were improper, but held “[t]he cumulation of circumstances in this present case would have suggested dereliction of duty on the part of the police officers if they had not detained for investigation and taken the precaution of a patdown search. The police officers here more than fulfilled the mandate of law with respect to detentions” and the cursory patdown searches. (Id. at pp. 260-261.)
Another similar situation was addressed in In re H.M. (2008) 167 Cal.App.4th 136, 144 (H.M.), where officers were speaking to gang members within a known gang “‘stronghold,’” in an area subject to a gang injunction, when they saw the minor running through traffic. The minor was a known member of that gang. An officer immediately detained the minor for illegally crossing the street, but he was more concerned about why the minor was running because there had been a shooting nearby the previous day. The detention was based on the officer “‘[j]ust knowing the area, prior experience, having worked that area; [the minor’s] demeanor, his actions.’” (Id. at p. 141.) The officer conducted a patdown search of the minor because “‘[i]f some type of crime had taken place, I thought that a weapon had been used,’ either by or against [the minor].” (Ibid.) The officer found a loaded semi-automatic handgun in the minor’s pocket. The juvenile court denied the minor’s suppression motion and held the detention and search were lawful. (Ibid.)
On appeal, H.M. held it was “clear” the officer’s initial Terry stop and detention of the minor was lawful, and the minor did not argue otherwise. (H.M., supra, 167 Cal.App.4th at p. 142.) H.M. further held the officer’s patdown search was lawful under Terry given the minor’s unusual behavior. (Id. at p. 144.) “Viewed objectively, through the lens of common sense and experience, [the minor’s] odd behavior strongly suggested criminal activity was afoot. Indeed, we can conceive of few hypotheses explaining [the minor’s] conduct, other than that he was either a perpetrator or a victim fleeing a crime scene.” (Ibid.) H.M. rejected the minor’s argument that his behavior was also consistent with innocent activity and noted that “an experienced officer is readily able to discern whether such flight is more indicative of innocent behavior or consciousness of guilt.” (Id. at p. 145.)
H.M. further noted that the minor’s suspicious conduct was observed in an area known for recent gang activity: “To be sure, the mere fact a person is located in a high-crime area when stopped by police does not, by itself, give rise to a reasonable suspicion that the individual is armed. [Citations.] Nonetheless, the character of the locale where the stop occurs is a factor to be considered in a Fourth Amendment analysis. ‘[O]fficers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly,... the fact that the stop occurred in a “high crime area”’ is one of the ‘relevant contextual considerations in a Terry analysis.’ [Citations.]” (H.M., supra, 167 Cal.App.4th at p. 145.)
H.M. found the location of the detention was “an especially significant factor demonstrating the officer had reasonable suspicion to stop and frisk.” (H.M., supra, 167 Cal.App.4th at p. 146.)
“… We cannot overlook the reality that in the 40 years since Terry was decided, the problem of criminal street gangs has escalated.... As recognized by our Supreme Court, the threat posed by violent street gangs ‘is of the most serious dimensions and state policy urgently seeks its alleviation. The Legislature has said as much, and the Official Reports are replete with examples of the problem.’ [Citation.] ‘“Criminal street gangs have become more violent, bolder, and better organized in recent years.”’ [Citations.]... [¶] It is likewise common knowledge that members of criminal street gangs often carry guns and other weapons. ‘When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them.’ [Citations.]” (Ibid.)
H.M. noted the officer was assigned to the local gang enforcement team, he had patrolled the gang’s territorial neighborhood, and he “was certainly aware of the increased likelihood of encountering weapons in the area.” (H.M., supra, 167 Cal.App.4th at p. 146.) “Officers in an area plagued by violent gang activity need not ignore the reality that persons who commit crimes there are likely to be armed. ‘[T]he fact that an area involves increased gang activity may be considered if it is relevant to an officer’s belief the detainee is armed and dangerous. While this factor alone may not justify a weapon search, combined with additional factors it may.’ [Citations.] Given the realities of police work in such areas, we believe it is eminently reasonable for an officer to suspect a person who appears to have been involved in a crime may also be armed and dangerous.” (Id. at pp. 146-147.)
H.M. held it was reasonable for the officer to assume that “a crime committed in a gang stronghold would involve a weapon, and that a person fleeing from such a crime would likely be armed.” (H.M., supra, 167 Cal.App.4th at p. 147.) “When an officer observes conduct giving rise to a reasonable suspicion an individual is involved in criminal activity, and that activity occurs in an area known for recent, violent gang crime, these facts together go a long way toward establishing reasonable suspicion the individual is armed.” (Ibid.) H.M. rejected the minor’s argument that he was stopped and frisked merely because he was in gang territory or as a routine procedure, because the minor’s “curious activities strongly suggested criminal activity was afoot, leading an experienced officer to conclude [the minor] might well be armed.” (Id. at pp. 147-148.)
As applicable to the instant case, Officer Torres’s decision to detain and conduct patdown searches of appellant and his companions was reasonable under the totality of the circumstances. Torres had served in the police department’s gang unit, he was well aware of gang activity by Surenos in that specific area, and he was responding to a dispatch of gang graffiti/vandalism involving five subjects wearing gang attire. He was within a block and a half of the dispatch report when he observed four subjects walking along the street. As appellant notes, appellant and his companions were walking along a public street in the middle of the day, and the mere presence of four subjects in a known Sureno area would not have been sufficient to establish reasonable suspicion for a Terry stop. However, Torres observed one of the subjects toss a blue bandanna into the bushes at a point where the subjects clearly saw Torres’s patrol car approaching them. As in Stephen L. and H.M., the officer had reasonable suspicion to detain these subjects based upon the nature of the dispatch, his experience and knowledge about Sureno activity in that neighborhood, the significance of a blue bandanna in that neighborhood, and the furtive gesture of one subject who tried to dispose of an article of apparent gang attire as the officer approached them.
Officer Torres also had reasonable suspicion to conduct the patdown searches of appellant and his companions, again based upon the nature and circumstances of the situation. Torres had attended many gang workshops and conferences, he contacted and arrested numerous gang members, and he testified as an expert in gang-related cases. He was investigating a possible act of gang vandalism in a known Sureno neighborhood, and he observed one of the four subjects behave suspiciously by tossing a blue bandanna as the officer approached the location. As in H.M., it was reasonable for Torres to conduct the patdown searches based upon the “common knowledge” that relatively innocuous gang behavior “‘can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them.’ [Citations.]” (H.M., supra, 167 Cal.App.4th at p. 146.)
As applicable to the instant case, “[a]ll of these factors, although perhaps individually harmless, could reasonably combine to create fear in a detaining officer. The Terry test does not look to the individual details in its search for a reasonable belief that one’s safety is in danger; rather it looks to the ‘totality of the circumstances.’ [Citation.]” (People v. Avila (1997) 58 Cal.App.4th 1069, 1074.) We agree with H.M. that “[g]iven the realities of police work in such areas, we believe it is eminently reasonable for an officer to suspect a person who appears to have been involved in a crime may also be armed and dangerous.” (H.M., supra, 167 Cal.App.4th at p. 147.) Torres had reasonable suspicion to detain the four subjects to determine if they were involved in an act of gang-related vandalism, he was in the midst of a neighborhood with regular Sureno activity, one subject tossed an apparent article of gang attire, and that subject’s furtive gesture led to the reasonable suspicion that these subject were associated with the Surenos, were involved in Sureno activities, and could be armed.
II.
DEFERRED ENTRY OF JUDGMENT
Appellant next contends the matter must be remanded because the prosecution failed to consider his eligibility, and the juvenile court failed to consider his suitability, for DEJ. Respondent asserts the court’s failure to consider appellant’s suitability for DEJ is harmless error because appellant failed to admit the allegations of the wardship petition and requested a contested jurisdictional hearing.
“The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The sections provide that 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. [Citations.]” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).)
The determination of whether to grant DEJ requires consideration of “two distinct essential elements of the [DEJ] program,” which are “eligibility” and “suitability.” (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10, italics in original.) The eligibility requirements for DEJ are set forth in section 790, which provides that a minor is eligible for DEJ if he or she is accused in a juvenile wardship proceeding of committing a felony offense and all of the following circumstances apply: “(1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [¶] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. [¶] (3) The minor has not previously been committed to the custody of the Youth Authority. [¶] (4) The minor’s record does not indicate that probation has ever been revoked without being completed. [¶] (5) The minor is at least 14 years of age at the time of the hearing. [¶] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code.” (§ 790, subds. (a)(1)-(6).)
Section 790, subdivision (a)(3) refers to the California Youth Authority (CYA), which was renamed the California Department of Corrections and Rehabilitation, Juvenile Justice, effective July 1, 2005. The Division of Juvenile Facilities (DJF) is part of the Division of Juvenile Justice. (In re M.B. (2009) 174 Cal.App.4th 1472, 1475.)
The prosecuting attorney has the duty to assess a minor’s eligibility for DEJ: “The prosecuting attorney shall review his or her file to determine whether [the eligibility requirements set forth above] apply.” (§ 790, subd. (b), italics added.) California Rules of Court, rule 5.800(b) reiterates the prosecuting attorney’s duty, that “[b]efore filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review” (italics added) the minor’s file to determine his or her eligibility under section 790, subdivision (a).
If the minor is found eligible for DEJ, 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.” (§ 790, subd. (b), italics added.) Upon finding the minor eligible, the prosecuting attorney “must file” a form entitled “Determination of Eligibility-Deferred Entry of Judgment-Juvenile (form JV-750),” at the time that the section 602 wardship petition is filed. (California Rules of Court, rule 5.800(b), italics added.) In addition, the prosecutor’s “written notification to the minor” of the DEJ eligibility “shall also include” (§ 791, subd. (a), italics added) a “full description of the procedures for deferred entry of judgment” (id., subd. (a)(1)), a general explanation of the roles and authorities of the various government entities involved (id., subd. (a)(2)), and “[a] clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment....” (id., subd. (a)(3)).
By comparison, “[i]f 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” the form JV-750, so stating. (California Rules of Court, rule 5.800(e).)
Once the minor’s eligibility is established, the juvenile court has the discretion to determine if the minor is suitable for DEJ after consideration of certain statutory factors. (In re Usef S. (2008) 160 Cal.App.4th 276, 283-284 (Usef S.); In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).) “Otherwise stated, once eligibility is established, ‘the statutory language empowers but does not compel the juvenile court to grant [DEJ].’ [Citations.] The juvenile court thus independently determines the minor’s suitability for the DEJ based on certain factors, including the minor’s age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the minor would derive from education, treatment, and rehabilitation efforts. [Citations.]” (Usef S., supra, 160 Cal.App.4th at p. 284.) Denial of DEJ is proper “only when the trial court finds the minor would not benefit from education, treatment and rehabilitation.” (Martha C., supra, 108 Cal.App.4th at p. 561.) In making such a determination, the court may find the circumstances of a crime indicate that a minor is not amenable to rehabilitation. (Id. at p. 562.)
The entirety of the record in this case reflects appellant was eligible for DEJ pursuant to the provisions of section 790, subdivision (a). Prior to this petition, the appellate record reflects appellant had one other juvenile wardship petition filed against him, which alleged the commission of felony vandalism and misdemeanor disturbing the peace, arising from an incident when appellant and six companions tagged a wall with Sureno graffiti. On June 14, 2005, appellant admitted committing misdemeanor vandalism and the other count was dismissed. (Pen. Code, § 594, subd. (a).) On July 12, 2005, appellant was adjudged a ward of the court and placed on probation at his mother’s home, subject to various terms and conditions. On January 11, 2006, the court dismissed appellant’s probation as being satisfactorily completed. Thus, while appellant was subject to a prior petition, the court did not find he committed a felony offense, he was not committed to DJF, and he satisfactorily completed probation.
The wardship petition filed in this case alleged appellant committed three felony offenses: count I, carrying a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)); count II, unlawful manufacture or possession of an instrument and weapon, a screwdriver (Pen. Code, § 12020, subd. (a)(1)); and count III, participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). These offenses are not contained within section 707, subdivision (b), and respondent so concedes.
While appellant was clearly eligible for DEJ under section 790, subdivision (a), the instant appellate record does not contain any evidence that the prosecution performed its mandatory duty to review appellant’s case to determine his eligibility, file form JV-750 with the wardship petition, or file written notification to appellant and his attorney about his eligibility (§§ 790, subd. (b), 791; California Rules of Court, rule 5.800(b)).
Respondent does not claim appellant was ineligible for DEJ under section 790, subdivision (a). Indeed, respondent concedes it is “unclear from the record whether the prosecutor made a determination” of appellant’s eligibility for DEJ. However, respondent argues the juvenile court’s failure to consider appellant’s suitability for DEJ was harmless because appellant “expressed no interested in DEJ and proceeded instead to contest jurisdiction.”
Respondent’s harmless error analysis is based on In re Kenneth J. (2008) 158 Cal.App.4th 973 (Kenneth J.) and Usef S., supra, 160 Cal.App.4th 276, but those cases are inapposite to the instant situation. In both Kenneth J. and Usef S., the prosecuting attorneys found the minors were eligible for DEJ, the minors received notice of those determinations, but the minors denied the allegations of the wardship petitions and requested contested jurisdictional hearings. (Kenneth J., supra, 158 Cal.App.4th at pp. 976-978; Usef S., supra, 160 Cal.App.4th at pp. 281-283.) Kenneth J. 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.” (Kenneth J., supra, 158 Cal.App.4th at pp. 979-980.) Kenneth J. found the minor’s actions “were tantamount to a rejection of DEJ.” (Id. at p. 980.) Usef S. similarly held the minor “effectively rejected DEJ consideration when he denied the allegations against him and insisted on a contested jurisdictional hearing.” (Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.)
In contrast to Kenneth J. and Usef S., there is no evidence the prosecution herein complied with the statutory duty to determine appellant’s eligibility for DEJ, even though the instant record demonstrates appellant was eligible pursuant to section 790, subdivision (a) at the time the wardship petition was filed in this case. Instead, the instant case is similar to Luis B., supra, 142 Cal.App.4th 1117, where the prosecuting attorney failed to assess the minor’s DEJ eligibility or provide the requisite statutory notice to the minor. The minor requested a contested jurisdictional hearing, the court found the allegations of the wardship petition were true, and the court did not consider the minor’s suitability for DEJ. (Id. at pp. 1120, 1121.) Luis B. set aside the juvenile court’s findings and dispositional orders, and remanded the matter for further proceedings pursuant to section 790 and the predecessor to California Rules of Court, rule 5.800, because “the prosecuting attorney did not satisfy the statutory requirements to determine eligibility and provide notice, and the trial court failed to conduct the necessary inquiry and exercise discretion” to determine the minor’s suitability for DEJ. (Id. at p. 1123; see also In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.)
As in Luis B., the prosecution herein failed to comply with its statutory mandate to determine the minor’s eligibility for DEJ at the time it filed the wardship petition in this case, even though the appellate record indicates that appellant was eligible for DEJ at the time the petition was filed. (§ 790, subd. (a).) Respondent correctly notes appellant requested a contested jurisdictional hearing and filed a suppression motion but, in contrast to Kenneth J. and Usef S., those actions were not made after being informed of his eligibility for DEJ and cannot be considered as tantamount to a rejection of DEJ. Indeed, appellant could have been advised of his eligibility for DEJ and still filed a suppression motion without rejecting such eligibility, as long as he did not request a contested jurisdictional hearing after the court ruled upon his suppression motion. (See In re A.I. (2009) 176 Cal.App.4th 1426, 1434 [“a minor may first litigate a suppression motion and then, after its denial, accept DEJ”].)
Respondent raises another harmless error argument based upon appellant’s gang activities and contends his record, as reflected in the entirety of the record, showed “repeated and increasingly serious gang-related conduct” such that the juvenile court would have likely found appellant was not suitable for DEJ because “his delinquent behavior had increased in severity throughout the years.”
As respondent notes, the probation report prepared for the instant case summarized appellant’s conduct after he admitted the misdemeanor offense in the first juvenile petition in 2005. According to the probation report, appellant had “extensive involvement” and was “heavily affiliated” with Southern gangs, based upon several gang-related tattoos indicative of Southern gang membership, and his school records which indicated he was a Southern gang member. While appellant’s mother said he was apprehended in this case while carrying a knife “‘used to cut fruit,’” the probation report noted he was found in possession of several items which could have been used to inflict injuries on others, he had “no purposeful use for the carrying of such items,” and the fact that he was carrying items “like a butcher knife” led the probation department “to believe that [appellant] is a safety risk within the community.”
The probation officer was also concerned about appellant’s lack of school attendance and numerous unexcused absences, and that he would not be able to complete high school if he failed to attend on a consistent basis. The probation report concluded that appellant “would benefit from an intensive form of supervision to promote compliance while on probation.”
In addition to the probation report, the testimony at the contested hearing by Officer Dwight Brumley, a member of the police department’s gang suppression unit, revealed additional information about appellant’s gang-related activities. Brumley testified about numerous contacts between appellant and the gang unit, which occurred both before and after the first juvenile petition was filed against him in 2005. In the course of these contacts, appellant admitted his association with Sureno gang, admitted he was a member of the Loco Park Surenos, was observed to have Sureno-related tattoos, and he was with other members of the Sureno gang.
Brumley testified that in September 2003, appellant and other self-admitted members of the Surenos were involved in a battery on school grounds when someone called appellant a “scrap,” a derogatory term for a Sureno. Brumley testified the first juvenile petition filed against appellant involved an incident when he was with other members of the Surenos and they were carving Sureno graffiti into the wall of a residence. In March 2005, appellant was involved in mutual combat with a self-admitted member of the rival Norteno gang. In March 2007, appellant was involved in a traffic stop and he was with other self-admitted members of the Surenos. In July 2007, appellant and his family were victims of a drive-by shooting at their house. Appellant told the police that the shooting was gang-related. He admitted he was a member of the Surenos, and he said the responsible parties were Norteno gang members in the area who often flashed gang signs at him. In October and December 2007, officers contacted appellant involving two separate shooting incidents, and he was with other self-admitted members of the Surenos.
Brumley testified that in January 2008, appellant was arrested at school for possession of a concealed weapon and possession of marijuana. Appellant was wearing a belt with the letter “P” cut out of the buckle, indicating his association with the Loco Park Surenos. The appellate record, however, does not indicate the resolution of that arrest, which occurred just one month before appellant was arrested in the instant case.
Respondent contends that even though appellant may have been statutorily eligible for DEJ, the court would have found him not suitable for DEJ based upon his increasingly serious gang-related activities, such that any error in failing to determine appellant’s eligibility is harmless. As explained ante, the determination of whether to grant DEJ requires consideration of “two distinct essential elements” of the DEJ program, which are “eligibility” and “suitability.” (In re Sergio R., supra, 106 Cal.App.4th at p. 607, fn. 10, italics in original.) Once the minor’s eligibility for DEJ is established, the juvenile court has the discretion to determine if the minor is suitable for DEJ after consideration of certain statutory factors. (Usef S., supra, 160 Cal.App.4th at pp. 283-284; Luis B., supra, 142 Cal.App.4th at p. 1123.)
A court’s finding of suitability for DEJ is an exercise in discretion. Despite a record replete with numerous acts of misconduct and evidence of gang-affiliation, the prosecutor’s apparent lack of evaluation of the minor for eligibility for DEJ pursuant to § 790 cannot be excused as harmless error. (See, e.g., In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1091.) Accordingly, the matter must be remanded for further appropriate proceedings to determine the minor’s eligibility and suitability for DEJ.
III.
DECLARATION OF THE OFFENSES AS FELONIES
Appellant contends the juvenile court failed to exercise its discretion to declare whether the three offenses that it found true were felonies or misdemeanors, and that the matter must be remanded for such an express finding.
Section 702 “provides that, in a juvenile proceeding, ‘[i]f 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,’” a “so-called ‘wobbler’” offense, the juvenile court “‘shall declare the offense to be a misdemeanor or felony.’” (In re Manzy W. (1997) 14 Cal.4th 1199, 1201.) The statute requires an “explicit declaration” by the juvenile court, and the requirement is “obligatory.” (Id. at p. 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,” and “‘the crucial fact’” is whether the court stated at any of the hearings that the offense was a felony. (Id. at p. 1208.)
Where the juvenile court fails to make such a designation, however, the matter need not be remanded for an explicit finding 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.” (In re Manzy W., supra, 14 Cal.4th at p. 1209.)
In the instant case, the entirety of the record establishes the juvenile court declared that appellant’s three offenses were felonies. As noted ante, the juvenile wardship petition herein alleged appellant committed three felony offenses: carrying a dirk or dagger, unlawful manufacture or possession of an instrument and weapon, a screwdriver, and participation in a criminal street gang. These offenses are punishable as either misdemeanors or felonies. (See Pen. Code, §§ 12020, subd. (a), 186.22, subd. (a).)
At the contested jurisdictional hearing, the court heard the evidence and found all three counts to be true. In doing so, the court specifically stated that it was clear beyond a reasonable doubt appellant “violated [Penal Code section] 186.22(a), a felony,” and that “[Penal Code] section 12020(a)(1) as a felony has been shown true beyond a reasonable doubt.” At the dispositional hearing, the court adjudged appellant a ward of the court, placed him on probation, and stated: “The offenses, the [Penal Code sections] 12020(a)(4), (a)(1), are designated felonies. The [Penal Code section] 186.22(a) is also designated a felony.” Even if the court’s statements are not considered as explicit declarations, the court was clearly aware of its discretion to determine the felony or misdemeanor nature of the three wobbler offenses, and exercised its discretion to declare the three offenses were felonies.
DISPOSITION
Defendant’s contentions as to the denial of his suppression motion and the determination of his offenses as felonies are without merit. However, the juvenile court’s jurisdiction and disposition orders are reversed for the reasons set forth ante as to the deferred entry of judgment issue. The matter is remanded to the juvenile court for exercise of its discretion to determine, in view of the requirements set forth in Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800, whether appellant should be granted deferred entry of judgment, provided appellant admits the allegations of the petition. Should appellant not admit the petition’s allegations, or should the juvenile court, in its discretion, determine that deferred entry of judgment should not be granted, the court’s jurisdiction and disposition orders are to be reinstated.
WE CONCUR: Dawson, Acting P.J., Hill, J.