Filed 3/27/14 In re N.H. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In 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.

INTRODUCTION

The juvenile court found true the allegations 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, § 23153, 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 carrying alcohol in a 

vehicle by a driver under 21 (Veh. Code, § 23224, subd. (a); count 4). The court also 

found true all enhancements attached to counts 1 through 3. On appeal, N.H. contends 

that the juvenile court erred by (1) failing to conduct a hearing to determine her 
2

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 7021, (3) failing to strike counts 2 and 3 and the 

attached enhancements, and (4) miscalculating the maximum time of confinement

(MTC).

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

BACKGROUND

Around 9:00 p.m. on 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 four friends each drank from the bottle of brandy. There were also several 

other open containers of alcohol for anyone to consume. N.H. and her friends stayed for 

45 minutes, and then decided to leave to go to another party. 

Before 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 in 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 from rainfall 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 hit 

N.H.’s car’s left rear wheel. Sims veered to the left and N.H. veered to the right. Sims’s 

car bounced off the median and spun across 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 

inside a backpack in N.H.’s car. Officer Gary Gray, who responded to the accident, 

contacted the three boys and 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 drinking earlier that 

evening. She told the officer that she had three shots of brandy prior to driving. She 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 were red and watery. 

Officer Gray administered field sobriety tests, including two preliminary alcohol 

screening (PAS) tests 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 of 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 individuals involved in the accident and the evidence at the scene, that 

N.H. made an unsafe 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 alleged 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 alcohol 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, § 23224, 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 inflicted bodily injury upon N.V. (Veh. Code, § 23558). As to counts 2 and 3, 

the petition further alleged 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 contested jurisdictional hearing. 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 accident. 

Following the jurisdictional hearing, the juvenile court found true all of the 

allegations and enhancements. At the contested dispositional hearing, the juvenile court 

declared N.H. a ward of the court. The court placed N.H. on probation and adopted the 

probation officer’s recommendations, with some modifications. One of the conditions 

mandated 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. 

DISCUSSION

N.H. raises several contentions on appeal. First, N.H. argues that the juvenile 

court erred by failing to hold a DEJ suitability hearing. Second, she contends that the 
5

juvenile court failed to expressly declare whether counts 1 through 3 were misdemeanors 

or felonies. Third, she contends that counts 2 and 3 and the attached 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 

On April 28, 2011, the district attorney 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 . . . admit 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 probation department submitted a DEJ suitability report, in which it recommended

that N.H. should be found unsuitable for DEJ. Specifically, the report noted that “[e]ven 

though [N.H.] appears remorseful, she needs to be held accountable for her deadly 

decision to drink and drive. The Officer thought [N.H.] would have at least learned a 

lesson . . . however, there have been pictures posted on facebook a few month later 

showing [N.H.] with her friends partying and being in the presence of alcohol. This 

Officer does 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 provide 

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 requirements 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. In 

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 could make a 

determination of whether N.H. was suitable for DEJ, “the minor needs to demonstrate 

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 legal 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 notification 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 not 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.” The 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 was not required before the juvenile court could determine her 

suitability for DEJ. The court held a hearing in March 2012, 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 instructive 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] components 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 for 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 department for further investigation.’ ” (Id. at p. 977.)

The determination of whether to grant DEJ requires consideration of “two distinct 

essential 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, that 
8

“[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 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).) 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 for 

[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 petition, 

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 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.); Luis B., supra, 

142 Cal.App.4th 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 circumstances similar to those 

present here. In that case, the minor had been informed of his DEJ eligibility, but insisted 

on contesting the charges through a jurisdictional hearing. (Kenneth J., supra, 158

Cal.App.4th at pp. 977-978.) The appellate court rejected the minor’s argument that the 

trial court was nonetheless required to hold a DEJ suitability hearing. The appellate court 
9

noted that “It is perhaps true the DEJ statutes make no express provision for a minor in 

Kenneth’s position, one 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. 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 protection 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.” (Id. at pp. 979-980.) 

Similarly, in Usef S., the appellate court 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 discretion 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 

prosecutor 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 in 
10

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 cases, she requested a DEJ suitability determination 

and sought DEJ. 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 hearing was tantamount to a rejection of DEJ. 

The 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 the 

influence of alcohol with a blood-alcohol level of 0.08 percent and causing injury are 

felonies or misdemeanors.

Section 702 provides, in pertinent part: “If the minor is found to have committed 

an offense which would in the case of an adult be punishable alternatively as a felony or a 

misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” The 

statute “is unambiguous. It requires an explicit declaration by the juvenile court whether 

an offense would be a felony or misdemeanor in the case of an adult.” (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 recalculated 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 punishable as either felonies or as

misdemeanors. (See People v. Traylor (2009) 46 Cal.4th 1205, 1210, fn. 2; Veh. Code, 

§ 23554.) The petition, the minute orders from the jurisdictional and the dispositional

hearings, and the juvenile court’s oral pronouncement at the jurisdictional hearing

referred to counts 1 through 3 as felonies. Nevertheless, there is nothing on the record 

demonstrating that the court was aware of its discretion and exercised that discretion to 

treat these allegations as misdemeanors. Therefore, remand is appropriate to allow the 

court to make 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 treat 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 attached 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 included offenses. 

[Citations.]” (People v. Ramirez (2009) 45 Cal.4th 980, 984.) A defendant cannot be 
12

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 23153 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.4th at p. 1148.) 

However, in instances where in a single incident a defendant commits vehicular 

manslaughter as to one individual and also causes injury to individuals other than the 

manslaughter victim, separate punishment is permissible. (See People v. McFarland 

(1989) 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 counts 2 and 3 and the 

attached enhancements as to victims, C.D. and A.D., were properly sustained.

However, the enhancements attached to counts 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 section 

12022.7, subdivision (a) for each person she personally inflicted great bodily injury upon, 

including J.W. An enhancement under Penal Code section 12022.7, subdivision (a) 

cannot apply to crimes of murder or manslaughter. (Pen. Code, § 12022.7, subd. (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 counts 2 and 3 as to victim, 

J.W., must be stricken.
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IV.Maximum Time of Confinement

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 enhancements, 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 calculation on the original petition. The original petition alleged 

gross vehicular manslaughter under subdivision (a) of Penal Code section 191.5, rather 

than vehicular manslaughter under subdivision (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 recalculate the MTC and to articulate how the 

court arrived at the final result. 

DISPOSITION

The dispositional order is reversed. The matter is remanded to the juvenile court 

with directions to do the following: (1) make an 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 maximum time of confinement in conformity with 

this opinion.
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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

MÁRQUEZ, J.