Filed 11/20/20 In re S.G. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re S.G., a Person Coming 

Under the Juvenile Court 

Law.

2d Crim. No. B302511

(Super. Ct. No. YJ39732)

(Los Angeles County)

THE PEOPLE,

 Plaintiff and Respondent,

v.

S.G.,

 Defendant and Appellant.

S.G. appeals from the judgment after the juvenile 

court sustained a petition for felony vandalism. (Welf. & Inst. 

Code,1 § 602; Pen. Code, § 594, subd. (a).) The court declared S.G. 

a ward of the court and placed her on probation. S.G. contends: 

1 Unless otherwise noted, all subsequent statutory 

references are to the Welfare and Institutions Code.
2

(1) we must remand for the trial court to consider deferred entry 

of judgment (DEJ), and (2) the trial court abused its discretion 

when it admitted a witness statement as a past recollection 

recorded. We agree that the case must be remanded to consider

DEJ but reject the contention regarding past recollection 

recorded.

FACTUAL AND PROCEDURAL HISTORY

S.G. was charged with vandalism of a vehicle causing 

over $400 in damage. The court file contains a Declaration of 

Eligibility/Deferred Entry of Judgment (Judicial Council form JV750), signed by the district attorney’s office, stating that S.G. was 

eligible for DEJ. (§ 790 et seq.) The file also contains a Citation

and Written Notification for Deferred Entry of Judgment (form 

JV-751), which explains DEJ but does not state a date, time, or 

location for a DEJ hearing.

S.G. denied the charges at arraignment. After the 

court referred the case to the probation department to consider

informal supervision (§ 654.2), the probation department filed a 

report recommending DEJ. The record does not show that the 

court considered DEJ before conducting the contested 

jurisdictional hearing.

At trial, C.N. testified that he drove his Mercedes to a 

house party. He knew S.G. because she previously dated his

friend. At the party, C.N. saw S.G. look at him as she whispered 

into her sister’s ear. S.G.’s sister then told C.N. that something 

happened to his car. He saw two key marks on the passenger 

door. 

Police Officer Joseph Roberts testified that he 

responded to the party. Roberts talked to a witness, J.K., and 

recorded the conversation with a body camera. J.K. told Roberts

that he heard S.G. say she was going to “key” the car. He said he 

followed her outside and saw her “key” the front passenger side of 
3

the car. Roberts observed a scratch on the front passenger door. 

J.K. testified that at the time of the party, he was 

abusing Xanax, “which kind of wipes your memory.” As a result, 

he had “no actual memory of the event.” He remembered being 

present at the party and S.G. being taken away in a police 

vehicle. He testified that he spoke to officers prior to her being 

arrested and told them “what [he] heard and what [he] saw.” He 

told police “everything that [he] remembered happened.” He was 

aware that police were “taking down” what he was saying for a 

report. 

J.K. testified that he intended to be truthful and 

honest to the officers. He had “no reason to fabricate it.” He had 

never had any type of problem with S.G., had no animosity 

towards her, and had no reason to want her to be arrested. He 

did not know the victim before this incident. When the 

prosecutor asked, “Why were you being honest?”, he answered, 

“Because I had no reason not to be.” 

Before testifying, J.K. watched and heard the body 

camera recording of his statements. He said in the recording that

he heard S.G. say she was going to “key” the car. He said he saw 

S.G. go outside and “key” a Mercedes. However, in court, he had 

no independent recollection of the statements. 

On cross-examination, defense counsel asked, “Do 

you know if you can trust yourself on Xanax to be truthful in 

what you’re saying?” J.K. answered, “No.” Counsel asked, “So 

you don’t know whether or not it was a lie when you were on 

Xanax that night?” J.K. answered, “I believe I was truthful, but 

under the influence of Xanax, I have no independent 

recollection.”

The court sustained the petition and proceeded to 

disposition. Defense counsel requested probation without 

wardship (§ 725) and noted that the probation department 
4

originally recommended DEJ. The court stated that DEJ was no 

longer available because the petition had been sustained by 

adjudication. 

The dispositional hearing was continued and heard 

by another judge. S.G.’s mother told the court, “We were offered 

a year ago this diversion, but she was innocent.” She also stated 

that a year ago, they went to “an office” and were offered “a 

program,” but they did not take it because they had proof S.G. did 

not commit the offense. The court said that the program was the 

JOIN program through the district attorney’s office. The court 

stated, “I don’t agree with the [DEJ] recommendation. This is 

going to be HOP [home on probation]. It’s not going to be DEJ,

based on what I’ve seen.” The court declared S.G. a ward and

placed her on probation.

DISCUSSION

Deferred entry of judgment

S.G. contends the matter must be remanded for the 

juvenile court to consider her suitability for DEJ. We agree.

DEJ allows a minor to be placed on 12 to 36 months’ 

probation “in lieu of jurisdictional and disposition hearings.” 

(§ 791, subd. (a)(3).) The prosecuting attorney must review the 

file, and if they determine the minor is eligible, “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).) The court may set the hearing for DEJ at the 

time of the initial appearance on the petition, and shall 

personally serve the custodial parent at least 24 hours before the 

hearing with a citation for the minor to appear “at the time and 

place set for the hearing.” (§§ 790, subd. (b), 792.) 

The court may summarily grant DEJ, or may refer 

the matter to the probation department for investigation. (§ 791, 
5

subd. (b).) The court may grant DEJ if it determines the minor is 

suitable and the minor admits the allegations in the petition and 

waives time for pronouncement of judgment. (§§ 790, subd. (b), 

791, subd. (a)(3).) If the minor successfully completes probation, 

on motion of the prosecution and with a positive probation 

department recommendation, the court shall dismiss the charges 

and seal the records. (§ 793, subd. (c).)

“[A] juvenile court is excused from its statutory duty 

to determine a DEJ-eligible minor’s suitability for DEJ if the 

minor—after receiving notice of his or her DEJ eligibility—

nonetheless rejects the possibility of DEJ by contesting the 

charges.” (In re C.W. (2012) 208 Cal.App.4th 654, 662; In re Usef 

S. (2008) 160 Cal.App.4th 276, 286.) “But where, as here, the 

minor is not properly notified of DEJ procedures, the juvenile 

court may not fail to consider the minor’s suitability.” (In re 

Trenton D. (2015) 242 Cal.App.4th 1319, 1325.)

The record here does not show that S.G. was properly 

notified of her eligibility for DEJ. The court file contains form 

JV-750, which states that S.G. was eligible for DEJ, and a 

citation (JV-751) with the notifications required by section 791, 

subdivision (a). But the forms did not give a date, time, or 

location for the hearing. In addition, the box is not checked on 

the JV-750 that a JV-751 was attached. “[T]hese omissions . . . 

[are] sufficient to rebut the presumption that [S.G.] was properly 

advised of her DEJ eligibility either by the prosecutor or by the 

juvenile court.” (In re C.W., supra, 208 Cal.App.4th at p. 661.) 

And although counsel mentioned DEJ at the disposition hearing,

nothing in the record shows that S.G. knew about DEJ before 

then.

In addition, the record does not show that the court 

performed its “mandatory duty” to “examine the record, conduct a 

hearing, and determine whether the minor is suitable for DEJ, 
6

based upon whether the minor will derive benefit from its

‘education, treatment, and rehabilitation.’” (In re D.L. (2012) 206 

Cal.App.4th 1240, 1243; In re Luis B. (2006) 142 Cal.App.4th 

1117, 1123.) At disposition, the court stated that it was denying

DEJ. But because the court had no jurisdiction to offer it at that 

point, the denial of DEJ was not an adequate substitute for the 

pretrial hearing mandated by statute. (§ 791, subd. (a)(3); In re 

D.L., at p. 1244 [minor must admit allegations in lieu of 

jurisdictional hearing].)

Nor did S.G. reject DEJ. Her mother said they went 

to an office a year earlier and were offered a program, but they 

declined because S.G. was innocent. But declining a district 

attorney’s program without more cannot be deemed a rejection of

DEJ. We cannot excuse compliance with the mandatory

procedures based on mere speculation that if S.G. had received 

the required advisements, and was offered the program while 

represented by counsel in court, she would have declined DEJ. 

Accordingly, we remand so that S.G. may be properly advised of 

DEJ eligibility and procedures.

Past recollection recorded

S.G. contends the trial court abused its discretion 

when it admitted J.K.’s statements to police pursuant to the 

hearsay exception for past recollection recorded. (Evid. Code, 

§ 1237.) We disagree.

Evidence Code section 1237, subdivision (a), allows 

the court to admit a witness statement if it “concerns a matter as 

to which the witness has insufficient present recollection to 

enable him to testify fully and accurately, and the statement is 

contained in a writing which: [¶] (1) [w]as made at a time when 

the fact recorded in the writing actually occurred or was fresh in 

the witness’[s] memory; [¶] (2) [w]as made . . . (ii) by some other 

person for the purpose of recording the witness’[s] statement at 
7

the time it was made; [¶] (3) [i]s offered after the witness testifies 

that the statement he made was a true statement of such fact; 

and [¶] (4) [i]s offered after the writing is authenticated as an 

accurate record of the statement.” 

We review for substantial evidence a trial court’s 

conclusions regarding foundational requirements for a hearsay 

exception. (People v. DeHoyos (2013) 57 Cal.4th 79, 132.) We 

review the trial court’s ruling admitting evidence pursuant to

Evidence Code section 1237 for abuse of discretion. (People v. 

Cowan (2010) 50 Cal.4th 401, 467 (Cowan).)

S.G. contends there is inadequate evidence that “the 

witness testifie[d] that the statement he made was a true 

statement of such fact.” (Evid. Code, § 1237, subd. (a)(3).) J.K. 

testified that he did not know if he could trust himself to be 

truthful on Xanax. But he also testified that he intended to be 

truthful, he believed he was truthful, and he told the officers 

what he heard and saw. Substantial evidence supports a finding

that the witness testified his statement was true. (See Cowan, 

supra, 50 Cal.4th at p. 466 [statement properly admitted

although witness admitted his memory was “jumbled” and 

“scrambled” because of drugs].)

The record does not show that the only things J.K. 

could remember were being at the party and seeing police take 

S.G. away. He testified that he spoke to officers and told them 

what he heard and saw. Like the past recollection admitted in 

People v. Sanchez (2019) 7 Cal.5th 14, 41, J.K. did not remember 

what he told police, but testified he talked to the police and told 

them the truth. (See Cowan, supra, 50 Cal.4th at p. 464 [witness 

“‘would not have remembered any’” of the facts in the interview 

transcript].) 

Exclusion of the statement is not mandated by People 

v. Simmons (1981) 123 Cal.App.3d 677 (Simmons). There, after 
8

making a transcribed statement to police, the witness suffered a 

head injury causing amnesia. (Id. at p. 679.) “[H]e could not say 

the contents were true, or even that he had made any statement 

whatsoever to the police.” (Ibid.) He did “not recall any event 

recorded in his prior statement, nor even making it or any 

circumstance surrounding its preparation.” (Id. at p. 682.) The 

Court of Appeal held that the statement was not admissible 

pursuant to Evidence Code section 1237, based in part on the 

confrontation clause. (Id. at p. 683.) In contrast here, J.K. 

testified that he gave a statement to police, and he told them

“everything that [he] remembered happened.” 

Moreover, Simmons was abrogated by United States 

v. Owens (1988) 484 U.S. 554, which held the right to confront 

witnesses was not violated by admission of a pretrial 

identification by a witness who could not remember the 

identification at trial. Owens “squarely rejected” the 

confrontation clause violation found in Simmons. (Cowan, supra, 

50 Cal.4th at p. 468.) Accordingly, “Simmons is not of any 

precedential value.” (People v. Gunder (2007) 151 Cal.App.4th 

412, 419, fn. 7.)

We conclude that the trial court did not abuse its 

discretion in admitting testimony based on J.K.’s recorded 

statement.

DISPOSITION

We set aside the order sustaining the petition and the 

dispositional order. The matter is remanded for further 

proceedings pursuant to Welfare and Institutions Code section 

790 et seq. S.G. shall receive the statutory notifications 
9

regarding DEJ. If the juvenile court denies DEJ, it shall 

reinstate the jurisdictional and dispositional orders.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
David S. Wesley, Judge

Superior Court County of Los Angeles

______________________________

Tonja R. Torres, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Steven D. Matthews and Gary A. 

Lieberman, Deputy Attorneys General, for Plaintiff and 

Respondent.