Although Welfare and Institutions Code section 733 does not have a provision giving the juvenile court authority to dismiss an admitted and sustained petition to avoid restrictions on DJJ commitment, the court can set aside findings and dismiss a petition under section 782. In May 2006, the minor, who was already a court ward on probation, admitted an assault (Pen. Code, § 245, subd. (a)(1)) that had been alleged in a section 602 petition. At disposition, the court continued the same placement. In August 2006, a section 777 pleading was filed alleging the minor absconded from his court-ordered placement. This pleading was consolidated with a new section 602 petition filed in December 2006, which alleged attempted second-degree robbery with the personal use of a deadly weapon. (Pen. Code, §§ 664/211; 12022, subd. (b)(1).) The minor admitted these charges and the probation violation. Before the disposition was held, the Legislature amended Welfare and Institutions Code section 733, to provides that a ward shall not be committed to DJJ unless the most recent offense in any petition is a section 707, subdivision (b), or a sex offense set forth in Penal Code section 290, subdivision (d)(3). In October 2007, the court granted the minor’s motion to set aside his plea to the weapon-use enhancement, which disqualified the attempted robbery as a section 707, subdivision (b) offense. The prosecutor then moved to dismiss the December 2006 petition under section 782 so that the court could sentence the minor to DJJ. The juvenile court set aside the admission to the December 2006 petition, dismissed the petition, ordered it not be refilled, terminated probation, and committed the minor to DJJ. The minor argued on appeal that amended section 733, barred the juvenile court for committing him to DJJ and that the statute did not have an escape clause to avoid the DJJ restriction by dismissing the latest admitted and sustained petition. The appellate court held that while section 733 does not specifically authorize dismissal of a petition, section 782 does, and the juvenile court acted under authority of the latter section. Accordingly, the DJJ commitment was not precluded by the December 2006 petition.
A notice filed under section 777 does not constitute a “petition” for purposes of section 733. Alternatively, the minor argued that the DJJ commitment was barred because the probation violation became the most recent petition and alleged offense, and this too was not a section 707, subdivision (b) offense. The appellate court rejected the argument finding that after the enactment of Proposition 21 in 2000, the “supplemental petitions” that were previously filed to initiate a revocation of probation, were replaced by “notices” filed under section 777, subdivisions (a)(2) and (b). (In re Eddie M. (2003) 31 Cal.4th 480.) So the fact that the minor admitted the allegation in the notice, and that the notice had not alleged a section 707, subdivision (b) offense did not preclude a DJJ commitment.