In re Hector G.
Filed 4/17/09 In re Hector G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re HECTOR G., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. HECTOR G., Defendant and Appellant. | D053202 (Super. Ct. No. J205169) |
APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed in part, reversed in part, and remanded with directions.
On May 10, 2008, Hector G. unlawfully drove a car without the owner's permission and with the intent to deprive her of possession of the car. He also drove the car on a public highway while he was under the influence of alcohol. On May 27 he entered a negotiated admission to felony unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) and misdemeanor driving under the influence of alcohol (Veh. Code, 23152, subd. (a)) with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). On June 10 the court continued him as a ward under the supervision of the probation officer and committed him to Camp Barrett. Hector appeals, contending the court erred by ordering a commitment longer than 365 days, by failing to set a proper maximum period of confinement and by failing to give him credit for time served. The People concede the case should be remanded for the court to clarify the custody order, set a proper maximum period of confinement and award credits. We agree.
DISCUSSION
The probation officer recommended that Hector be committed to Camp Barrett for a period not to exceed 365 days. At the dispositional hearing, the prosecutor asked for a 547-day commitment. The court told Hector, "[I] don't think it's unreasonable . . . to commit you to the maximum time at Camp Barrett which is the 571. You're going to be there a year." The prosecutor said, "547," and the court said, "547, I'm sorry." Hector's counsel argued that a commitment longer than 365 days was unauthorized. The court responded, "He's in a year with that?" The court officer said, "365, yes." The court then set an annual review hearing. Hector's counsel asked, "So is the court making it a 365 day or 547 day?" The court replied, "547, with the understanding that of that time he's spending 365 in Camp Barrett." The minute order states, "[Hector] is committed to Camp Barrett for a period not to exceed 547 days" and "[u]pon completion of the commitment . . . placed with [his m]other."
Hector suggests we "limit the disposition to 365 days [and] order the juvenile court to treat the remaining 182 days as a stay which cannot be lifted without following [Welfare and Institutions Code] section 777 procedures." (In re Lance W. (1985) 37 Cal.3d 873, 898-899.) Because of the discrepancy between the reporter's transcript and the minute order, and because it is unclear from the record what disposition the court intended, and in light of the omissions discussed below, we conclude it is appropriate to remand the case.
The juvenile court did not specify a maximum period of confinement as it was required to do at the dispositional hearing. (Welf. & Inst. Code, 726, subd. (c); In re Manzy W. (1997) 14 Cal.4th 1199, 1205.) Additionally, Vehicle Code section 10851, subdivision (a) describes a "wobbler," that is, "an offense that would, in the case of an adult, be punishable either as a misdemeanor or as a felony . . . ." (In re Manzy W., at p. 1201.) The court did not make the required declaration whether the offense was a misdemeanor or a felony (id. at pp. 1203-1209; Welf. & Inst. Code, 702) and "the record as a whole [does not] establish[] that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (In re Manzy W., at p. 1209.) Finally, Hector was in custody from his arrest on May 10, 2008, through the dispositional hearing on June 10, a total of 32 days. The court did not award him custody credits as it was required to do. (Welf. & Inst. Code, 726, subd. (c); In re Eric J. (1979) 25 Cal.3d 522, 535-536.)
DISPOSITION
The true findings are affirmed. The dispositional judgment is reversed. The case is remanded to the juvenile court for a new dispositional hearing in accordance with this opinion.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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