Filed 3/27/14 In re N.H. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I n re N.H., a Person Coming Under the Juvenile Court Law. H039258 (Santa Clara County Super. Ct. No. JV38234)

THE PEOPLE, Plaintiff and Respondent,

v.
N.H., Defendant and Appellant.

I NTRODUCTION The juvenile court found true the allegation s that appellant N.H. had committed vehicular manslaughter ( Pen. Code, § 191.5, subd. (b); count 1) , driving under the
influence of alcohol and /or drugs and causing injury (Veh. Code, § 2 3153 , subd. (a); count 2), driving under the influence of alcohol with a blood alcohol level of 0.08 percent and causing injury (Veh. Code, § 23153, subd. (b); count 3), and carr ying alcohol in a vehicle by a driver under 21 (Veh. Code, § 23 2 24, subd. (a); count 4)

. The court also
found true all enhancements a ttache d to counts 1 through 3. On appeal, N.H. contends that the juvenile court erred by (1) failing to conduct a hearing to determine her2

suitability for the deferred entry of judgment (DEJ) program , (2) failing to expressly
declare whether counts 1 through 3 were felonies or misdemeanors, as required by
Welfare and Institutions Code section 702 1

, (3) failing to strike counts 2 and 3 and the

a ttache d enhancements, and (4) miscalculating the maximum t ime of confinement (MTC)

. For the reasons stated below, we will reverse and remand the disposition al order

. B ACKGROUND Around 9:00 p.m. o n November 20, 2010, N.H., then a 17

- year old, drove her best
friend , J.W. , and three minor boys, C.D., N.V., and A.D. , to a party. On the way to the party, N.H. stopped by a liquor store, where C.D. stole a bottle of brandy. At the party,
N.H. and her fou r friends each drank from the bottle of brandy. There were also several other open container s of alcohol for anyone to consume

. N.H. and her friends stayed for 45 minutes, and then decided to leave to go to a nother party.
Befor e leaving, C.D. believed that “no one was good to drive .” Nevertheless, C.D.
offered to drive because he thought that N.H. should not drive

. N.H. responded, “It’s fine, I can drive.” N.H. got in the driver’s seat ; N.V. sat in the front passenger seat ; and C.D., A.D., and J.W. sat in the backseat . J.W. sat i n between C.D. and A.D

. While driving, N.H. looked at her phone

- based GPS to navigate her way to the next party. The
roads were wet f

rom rain fall earlier that day. Around midnight, N.H. took the Bernal Road onramp onto the 101 freeway.
When she tried to merge onto the right lane of the freeway, she “ cut off ” Jeffrey Sims.
N.H. was driving slower than Sims at the time . The right front wheel of Sim’s car h it
N.H.’s car’s left rear w heel. Sims veered to the left and N.H. veer ed to the right. Sims’s

car bounced off the median and spun a cross the highway. His car stopped in the right

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.3

lane, facing the opposite direction of traffic

. Sims exited his car, called 911, and walked
towards N.H.’s car

. N. H.’s car spun out and broadsided a tree along the highway. N. H., C.D. , and
A.D. , were injured . N.V. did not appear injured and exited the vehicle after the accident.
J.W. died in the accident.
At the scene of the accident , officers found a marijuana box, a baggy of marijuana, marijuana in a plastic vial, an empty bottle of brandy, and a bottle of vodka , which was in side a backpack in N.H.’s car. Officer Gary Gray , who responded to the accident,

con tacted the three boys an d observed that they appeared to have been drinking . He also
noticed that they smelled of alcohol. N.H. and two of the boys were transported to a hospital. Officer Gray spoke to N.H. at the hospital. N.H. admitted to the officer that she had been drin king earlier that evening

. She told the officer that she had three sh ots of brandy prior to driving. S he said
she took her first shot around 8:30 p.m. and her last shot around 9:00 p.m. The officer observed that alcohol odors were emanating from N.H.’s breath and body and that her
eyes w ere red and watery. Officer Gray administered field sobriety tests, including two preliminary alcohol screening (PAS) test s at 2:23 a.m. and 2:26 a.m. N.H. blew a 0 .037 percent and 0 .034 percent on the PAS device. The officer also administered a blood test at 2:45 a.m. The test indicated that she had a blood alcohol level (BAL) of 0 .043 percent

. Estimating from N.H.’s height, 4 feet and 11 inches , and weight, 125 pounds, a criminalist concluded that
N.H. had a BAL of approximately 0 .09 percent at the time o f the accident.
Based on Officer Gray’s questioning and the field sobriety tests, he concluded that N.H. was impaired at the time of the accident. The officer also concluded , based on the
statements of the indiv iduals involved in the accident and the evidence at the scene , that
N.H. made an uns afe lane change.4

On April 28, 2011, the district attorney filed a juvenile wardship petition and a form and written notice of N.H. ’s eligibility for DEJ. On August 29, 2012, the district attorney filed a second amended juvenile wardship petition

. The petition alleg ed that N.H. committed vehicular manslaughter ( Pen. Code, § 191.5, subd. (b); count 1), driving
under the influence of alcohol and/or drugs and causing injury (Veh. Code, § 23153 , subd. (a); count 2), driving under the influence of alcohol with a blood al cohol level of 0.08 percent and causing injury (Veh. Code, § 23153, subd. (b); count 3), and carrying
alcohol in a vehicle by a driver under the age of 21 (Veh. Code, § 23 2 24, subd. (a);

count 4). As to count 1, the petition further alleged that N.H. personally inflicted great bodily injury upon C.D. and A.D. ( Pen. Code, § 12022.7, subd. (a)) and that she personally inf

licted bodily inj ury upon N.V. (Veh. Code, § 23558). As to counts 2 and 3,
the petition further alleg ed that N.H. inflicted great bodily injury upon J.W., C.D., and
A.D

. ( Pen. Code, § 12022.7, subd. (a)). The juvenile court held a five

- day co ntested jurisdictional hear ing

. The prosecution ’s theory was that N.H. was under the influence of alcohol and caused the accident when she made an unsafe lane change. The defense’s theory at the hearing was that Sim’s driving contributed to the accident and that N.H.’s impairment did not affect her driving or cause the acc ident.
F ollowing the jurisdictional hearing, t he juvenile court found true all of the allegation s and enhancements. At the contested dispositional hearing, the juvenile court
declared N.H. a ward of the court. The court placed N.H. on probati on and adopted the probation officer’s recommendations, with some modifications. One of the condition s mand ated that N.H. serve sixth months in juvenile hall

. The court also suspended N.H.’s license for one year. The court set the MTC at 23 years 4 months.
D ISCUSSION N.H. raises several contention s on appeal. First, N.H. argues that the juvenile court erred by failing to hold a DEJ suitability hearing. Second, she contends that the5

juvenile court failed to expressly declare whether counts 1 through 3 were misdemeanors or felonies. Third, she cont ends that counts 2 and 3 and the a ttache d enhancements must be stricken as they are lesser included offenses of count 1. Lastly, she contends that the
MTC was miscalculated.

I. DEJ Suitability Hearing
1. Proceedings Below
O n April 28, 2011, the district atto rney filed a form determining that N.H. was eligible for DEJ. The district attorney also provided N.H. with a written notification of her eligibility for DEJ, which included an advisement that if the parties and the juvenile court agree that DEJ should be granted, “in lieu of normal court proceedings the youth will be required to . . . ad mit that the youth committed the offense or offenses alleged to have been committed. The District Attorney may require an admission to all offenses charged.” At arraignment on May 18, 2011, N .H. waived time for the jurisdictional hearing.
The probatio n department submitted a DEJ suitability report , in which it recommended
that N.H. should be found un suitable for DEJ. Specifically, the report noted that “[e]ven though [N.H.] appears remorseful, she need s to be held accountable for he r deadly
decision t o drink and drive. The Officer thought [N.H.] would have at least learned a lesson . . . however, there have been picture s posted on facebook a few month later showing [N.H.] with her friends partying and being in the presence of alcohol. This
Officer do es not believe [N.H.] understands the seriousness of her actions and how much she has affected the lives of the victim’s family. . . . [¶] This Officer believes Wardship must be established in order to hold her accountable in a meaningful manner to provid e close supervision of her behavior. Given the gravity of the offense, Wardship will provide for a tangible consequence if she fails. Given the totality and circumstance of the offense, this Officer finds the minor unsuitable for DEJ as her Probation req uirements are beyond the scope of the DEJ program.6

In January 2012, N.H. submitted a brief in favor of DEJ, disputing the probation report’s recommendation. The prosecution filed opposition to N.H.’s motion for DEJ. I n February 2012, the juvenile court held a pretrial hearing, where it discussed whether N.H

. was suitable for a DEJ determination. The court stated that before it cou ld make a determination of whether N.H. was suitable for DEJ, “the minor needs to demonst rate that she is in no uncertain terms admitting the allegations of the petition to be not only eligible, but suitable for [DEJ].” The court expressed that it had “certain reservations and
hesitations about [N.H.’s] suitability for [DEJ] . . . ; but it’s really a question of procedure .” The court stated that “the pre

- requisite to [a suitability determination] is you admit the allegations of the petition. And I understand that there are reasons for you not wanting to do those that have more to do with leg al questions than factual questions. I understand that. But in the Court’s opinion, I have no duty to inquire and hold a hearing as to suitability until those pre

- requisite conditions are met. . . . [¶] The People have through their appropriate notifica tion to you notified you that you are eligible for [DEJ]. And in that notice there should be a clear statement that to be eligible you must admit the allegations in the petition for me to be able to reach the decision as to whether or not you’re suitable. So it appears, unless something has changed, that we are not in a position now or the Court is not in a position and the case is not in a posture where I can
make that determination at this time.” Defense counsel asked whether the juvenile court was no t willing to go forward with the suitability hearing without N.H.’s admission to the petition. The court responded, “That’s correct. [¶] You know, as I said, I reviewed 790 and 791 as well as some of the case law that interprets the statutory scheme for [DEJ], and it’s clear to me that my discretion [and] my duty to conduct a hearing as to the suitability of this minor gives me the discretion to do that, but also to require that there be an admission to the petition.” T he court , however, granted defense counsel a continuance for further research and briefing of the DEJ issue.7

Subsequently, N.H. submitted additional briefing, in which she argued that an admission to the petition wa s not required before the juvenile court could determine her suitability for DEJ. The court held a hearing i n March 20 12, where it determined that it would not conduct a suitability hearing unless N.H. admitted to the petition. The court explained that “the statutory scheme is clear that an admission is required before the Court undertakes a suitability hearing

. . . . And even if that were a question of the Court’s discretion, I would still would [ sic ] not reach a different decision because the admission in this case might be very instruc tive and very important to the Court in making its determination as to just how sincere the minor is in expressing any regret, her motivations for wanting to undertake a sincere effort in rehabilitation; and those are . . . some of the key issues [and] com ponents that the Court must weigh in its decision.”

2. Analysis 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 f or the pronouncement of judgment.’ ” ( In re Kenneth J. (2008) 158 Cal.App.4th 973, 976 ( Kenneth J. ).) “ ‘If the minor waives the right to a speedy jurisdictional hearing, admits the charges in the petition and waives time for pronouncement of judgment, the court may summarily grant DEJ or refer the matter to the probation depart ment for further investigation.’ ” ( Id. at p. 977.) The determination of whether to grant DEJ requires consideration of “two distinct
essentia l elements of the [DEJ] program ” : “ eligibility ” and “ suitability. ” ( In re Sergio
R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) Once the threshold determination of eligibility is made, “The trial 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 ( Luis B. ) .) “The prosecuting attorney shall review his or her file to determine whether [the eligibility requirements set forth in § 790, subd. (a)(1)

- (6) ] apply.” (§ 790, subd. (b) .)
California Rules of Court, rule 5.800(b) reiterates the prosecuting attorney ’ s duty, that8

“[b]efore filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review” the minor’ s file to determine his or her eligib ility 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 i nformation available to the minor and his or
h er attorney.” (§ 790, subd. (b) .) 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 wardship petition is filed. (Cal. Rules of Court, rule 5.800(b) .) In addition, the prosecutor ’ s “written notification to the minor” of the DEJ eligibility “ shall also include” a “full description of the procedures f or [DEJ] , ” a general explanation of the roles and authorities of the various government entities involved, and “[a] clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant [DEJ] with respect to any offense charged in the petitio n, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment

. . . .” (§ 791, subd. (a) , italics added .)
Once the minor ’ s eligibility is established, the juvenile court has the discretion t o 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. ); Luis B. , supra , 142 Cal.App.4t h at p. 1123.) “Otherwise stated, once eligibility is established, ‘the statutory language empowers but does not compel the juvenile court to grant [DEJ].’ [Citations.]” ( Usef S., supra, 160 Cal.App.4th at p. 284.)
In Kenneth J., the appellate court considered circu mstances similar to those present here. In that case, t he minor had been informed of his DEJ el igibility, but insisted on contesting the charges through a jurisdictional hearing. ( Kenneth J., supra, 158 Cal.App.4th at pp. 977

- 978.) The appellate court r ejected the minor’s argument that the trial court was nonetheless required to hold a DEJ suitability hearing

. T he appellate court9

noted that “It is perhaps true the DEJ statutes make no express p rovision for a minor in Kenneth’ s position, one who is advis ed 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. But the DEJ is clearly intended to provide an expedited mechanism for channeling certain first

- time offenders away from the full panoply of a contested delinquency proceeding. That goal could not coexist with a minor who insists on exercising every procedural protectio n offered, and who then on appeal faults the juvenile court for not intervening and short circuiting those very protections. This would place a juvenile court in an impossible ‘ Heads he wins , tails I lose ’ situation

— not to mention apparently compelling a juvenile court to hold a hearing to consider DEJ for a minor who evinces no interest whatsoever in that option. We decline to adopt such a mischievous, if
not self

- defeating, construction.” ( I d. at pp. 979

- 980.) Similarly, i n Usef S. , the appellate co urt held that the juvenile court was not required to determine a minor ’ s DEJ suitability when the minor declined to admit the allegations against him. There, the minor argued that the juvenile court was required by
the DEJ statutes to exercise its discret ion to determine his DEJ suitability. ( Usef S. , supra , 160 Cal.App.4th at p. 282.) However, the appellate court held that “the juvenile court committed no error in failing to hold a hearing to determine the appellant ’ s suitability for DEJ once it became clear appellant was not admitting the allegations against him, but rather was insisting on contesting them at a jurisdictional hearing.” ( Id. at p. 286 , fn. omitted .)
Here , N.H. was found eligible for DEJ and pursuant to sections 790 and 791, the prosecut or filed a form and written notice of N.H.’s eligibility for DEJ. The written
notice advised N.H. that if the parties and the court agreed that DEJ should be granted, “in lieu of normal court proceedings” she would be required to “ admit that [ she ]
committed the offense or offenses alleged to have been committed” in the petition in10

order to be granted DEJ

. However , N.H. did not admit to the allegations in the petition,
and she proceeded with a contested jurisdictional hearing.
N.H. argues that Kenneth J

. and Usef S

. are distinguishable from the present case because, unlike the minors in those case s , she requested a DEJ suitability determination and sought DE J. We are not convinced by this distinction. Indeed, allowing N.H. to have both a suitability hearing without admitting to the petition and a contested jurisdictional hearing would contradict the intent of the DEJ program to provide “an expedited mechanism for channeling certain first

- time offenders away from the full panoply of a contested delinquency proceeding.” ( Kenneth J. , supra , 158 Cal.App.4th at p. 980.) Under the circumstances, N.H.’s failure to admit to the petition and her choice to proceed with a contested jurisdictional h earing was tantamount to a rejection of DEJ.
T he juvenile court was thus not obligated to hold a DEJ suitability hearing. (See id. at
p. 980; Usef S. , supra , 160 Cal.App.4th at p. 286.)

II. Express Declaration of N.H.’s Offenses as Felonies or Misdemeanors Next, N.H. claims that remand is necessary under section 702 for the trial court to make an express declaration about whether her counts of vehicular manslaughter, driving under the influence of alcohol and/or drugs and causing injury, and driving under t he
influence of alcohol with a blood

- alcohol level of 0 .08 percent and causing injury are felonies or misdemeanors

. S ection 702 provides, in pertinent part: “If the minor is found to have committed an offense which would in the case of an adult be punis hable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” T he statute “is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemean or in the case of an adult.” ( In re Manzy W

. (1997) 14 Cal.4th 1199, 1204 ( Manzy W .). ) The statute “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and
Institutions Code section 702

. For this reason, it cannot be deemed merely ‘directory.’ ”11

( Id. at p. 1207.) “The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to
state a misdemeanor

- length confinement limit.” ( Id. at p. 1209.) A juvenile court’ s failure to make the necessary declaration “ requires remand . . . for strict compliance with Welfare and Institutions Code section 702.” ( Manzy W., supra, 14 Cal.4th at p. 1204.) On remand, the maximum period of physical confinement may
need to be recal cula ted based on the juvenile court’ s express declaration. (See id. at
p. 1211.) In this case, N.H.’s vehicular manslaughter and driving under the influence and causing injury offenses could have been pu nishable as either felonies or a s misdemeanor s

. (S ee People v. Traylor (2009) 46 Cal.4th 1205, 1210, fn. 2; Veh. Code, § 23554.) T he petition, the minute order s from the jurisdictional and the disposition al hearing s , and the juvenile court ’s ora l pronouncement at the jurisdictional hearing
refer red to counts 1 through 3 as felonies

. Nevertheless, there is nothing on the record
demonstrat ing that the court was aware of its discretion and exercised that discretion to

treat these allegations as misdemeanor s

. Therefore, remand is appropriate to allow the

court to mak e an express declaration as to whether the offenses are felonies or
misdemeanors. (See Manzy W. , supra , 14 Cal.4th at p. 1209.) In the event that the court
elects to t reat the offenses as misdemeanors, it shall recalculate the MTC accordingly.

III. Conviction of a Lesser Included Offense Next, N.H. contends that counts 2 and 3 ( driving under the influence and causing injury ) and the a ttached enhancements must be stricken as they are lesser included
offenses of count 1 ( vehicular manslaughter )

. “In California, a single act or course of conduct can lead to convictions ‘of any number of the offenses charged.’ [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily incl uded offenses. [Citations.]” ( People v. Ramirez (2009) 45 Cal.4th 980, 984.) A defendant cannot be12

convicted of both a lesser included offense and the greater offense. ( People v. Reed (2006) 38 Cal.4th 1224, 1227.) Where a defendant has been convicted of both, the
conviction of the lesser included offense must be reversed and any attached
enhancements stricken. ( People v. Binkerd (2007) 155 Cal.App.4th 1143, 1150

- 1151 ( Binkerd ) .) N.H. primarily relies on People v. Miranda (1994) 21 Cal.App.4th 1464, in which the appellate court determined that Vehicle Code section 2 3153 is a lesser included
offense of Penal Code section 191.5. ( Id. at p. 1468.) In that case, the court explained
that where “ [ o ] ne person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury

— whether immediately or sometime later

— a violation of Penal Code section 191.5 has occurred.” ( Id. at p. 1468; see also Binkerd , supra , 155 Cal.App.4t h at p. 114 8 .) However, in instances wher e in a single incident a defendant commits vehicular manslaughter as to one individual and also cause s injury to individuals other than the manslaughter victim , separate punishment is permissible. ( See People v. McFarland (1 989) 47 Cal.3d 798, 803

- 804 ; People v. Thompson (2009) 180 Cal.App.4th 974, 978 .) In this case, N.H. caused great bodily injury to C.D. and A.D., who were individuals other than the manslaughter victim

. Thus, the allegations as to c ounts 2 and 3 and the

a ttach ed enhancements as to victims, C.D. and A.D., were proper ly sustained

. However, t he enhancements attached to count s 2 and 3 as to victim J.W. present a problem. N.H. ’ s sentence on counts 2 and 3 were enhanced under Penal Code se ction 12022.7, subdivision (a) for each person she personally inflicted great bodily injury upon,
includ ing J.W

. A n enhancement under Penal Code section 12022.7, subdivision (a)

cannot apply to cri mes of murder or manslaughter . (Pen. Code, § 12022.7, s ubd. (g) ; see also Binkerd , supra , 155 Cal.App.4th at p. 1149 [enhancements of lesser included offense must be stricken]. ) Therefore , the enhancements attached to count s 2 and 3 as to victim, J.W., must be stricken

.13 IV. M aximum T

ime of C onfinement Lastly, N.H. argues that the juvenile court improperly calculated the MTC at 23 years and four months. She contends that the MTC should be 11 years 8 months (upper

term , including enhancement s, for the principal offense, plus one

- third the mid

- term and enhancements for each subordinate offense). The Attorney General disagrees with N.H.’s proposed calculation, but agrees that the MTC was miscalculated, as it appears
that the court based its calc ulation on the original petition . The original petition allege d gross vehicular manslaughter under subdivision (a) of Pen al Code section 191.5, rather
th an vehicular manslaughter under subd ivision (b)

. Although it appears that the MTC was miscalculated , there is nothing in the record indicating how the juvenile court calculated N.H.’s MTC to be 23 years 4 months

. Therefore, on this record, we are not confident that we can accurately correct the error. On remand, we direct the juvenile court to recalcu late the MTC and to articulate how the

court arrived at the final result.
D ISPOSITION The dispositional order is reversed

. The matter is remanded to the juvenile court with directions to do the following: (1) make a n express declaration, pursuant to section 702, as to whether counts 1 through 3 are felonies or misdemeanors , (2) strike the Penal Code section 12022.7, subdivision (a) enhancements attached to counts 2 and 3 , as to victim, J.W ., and (3) recalculate the ma ximum time of confinement in conformity with this opinion

.14 ______________________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

PREMO, J

.

____________________________________

MÁRQUEZ, J.