In re Salvador O.
Filed 7/3/13 In
re Salvador O. CA1/2
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re
SALVADOR O., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
SALVADOR
O.,
Defendant and Appellant.
A134638
(Sonoma County
Super. Ct. No. 36667-J)
Salvador
O. appeals from a juvenile court order requiring him to serve 540 to 750 days
in “any penal institution.†He contends
that there is no legal authority for
the order because it will require him to serve time in county jail, and that
the juvenile court abused its discretion in imposing a lengthy fixed term
disposition. He further argues that the
court failed to calculate his maximum confinement time and the amount of secure
custody credit to which he is entitled.
We will remand for calculation of appellant’s
maximum period of confinement. In all
other respects, we will affirm the order.
STATEMENT OF THE
CASE
On
January 18, 2012, the
County District Attorney filed a subsequent delinquency petition (Welf.
& Inst. Code, § 602, subd. (a))
name="_ftnref1" title="">[1]
alleging that appellant, a 17 and a half year old ward of the court, had
escaped from a juvenile facility in violation of Welfare and Institutions Code
section 871, subdivision (a). Appellant
admitted the allegation and the petition was sustained on January 27. On February 10, the court committed
appellant to 540 to 750 days in “any penal institution.†The court’s order specifies, “Minor shall be
committed to Juvenile Hall for . . . 540 to 750 days†and further indicates,
“any penal institution including MADF.â€
Appellant
filed a timely notice of appeal on
February 10, 2012.
STATEMENT OF
FACTS
Appellant
was initially declared a ward of the court in October 2010, after admitting
allegations of felony robbery (Pen.
Code, § 211) and misdemeanor attempt to dissuade a witness (Pen. Code, § 136.1,
subd. (a)(2)) arising from the assault and robbery of Oscar L.
walking along the railroad tracks, Oscar came upon a group of five young men
smoking marijuana and joined them. The
five went to a market and when they returned asked Oscar if he wanted to buy
some marijuana. He purchased $20 worth
and remained with the group for another 20 minutes. After one of the group asked if Oscar wanted
to sell his necklace and Oscar declined, another of the young men told Oscar to
“look over there†and then kicked him in the face. Oscar fell and when he attempted to get up,
he was pushed down. Three of the young
men kicked and hit him multiple times.
One of the group ripped the necklace off Oscar’s neck, took his vest off
him, looked at his cellular phone and threw it back at him, took $30 from his
wallet and threw the wallet back at him.
While Oscar was on the ground, a member of the group whom Oscar later
identified as appellant stood over him, brandishing a knife, and told him not
to contact the police or they would kill him.
Oscar got up and ran, and appellant chased him for a while. Oscar went to his brother’s house and his
brother called the police. Oscar
initially identified appellant’s brother in a photographic lineup as the person
who chased him and threatened him with a knife.
Appellant’s brother told the police it was appellant who had used the
knife and chased Oscar. Oscar later
identified appellant as the person who held the knife and threatened him. Appellant admitted striking Oscar in the face
and elbowing him, taking $6 from Oscar’s wallet when it fell out of Oscar’s
vest, threatening to beat Oscar up if he called the police, and chasing him for
a quarter of a mile. He admitted that
he had a folding knife clipped to his belt during the incident but denied
brandishing the knife, taking Oscar’s necklace or threatening to kill
Oscar.
On
November 22, 2010, appellant was declared a ward of the court and detained at
juvenile hall pending commitment to a probation camp. On November 30, he participated in a fight at
juvenile hall, resulting in a petition that was sustained, upon his admission,
on January 6, 2011. juvenile hall
reported that the fight was gang related.
Appellant remained at juvenile hall pending camp placement, which
occurred on January 24, 2011.
In
May 2011, a juvenile correctional counselor reported that appellant had been
working diligently since his admission to camp on the issues that brought him
there, gang involvement, substance abuse and building responsible
relationships. He had identified anger
issues in himself and actively sought help in addressing them. He was described
as an “exceptional†student, was compliant with the expectations of probation
and camp staff, and participated in individual and family counseling and all
aspects of the camp program. Due to his
progress and stability, appellant was moved into the aftercare component of the
program on July 29.
Once
home, appellant began to engage in problematic behavior, including substance
abuse, taking his father’s car without permission, and associating with an
uncle who is a sex offender registrant, with whom staff had previously directed
appellant to have no contact. Appellant
was returned to the residential part of the camp program. In November 2011, the juvenile correctional
counselor reported that although disappointed by his “setbacks†while on
furlough, appellant was continuing to engage in the camp process and in his
“self-discovery and insight into his poor decisionmaking.†The report stated that appellant had had no
positive drug tests while in the residential program but “continue[d] to
struggle with substance abuse and his decision making while in the community.â€
On
January 15, while visiting his aunt in Santa Rosa with his father, appellant
left the house without telling anyone.
Appellant’s father contacted probation camp staff about 15 minutes
later, when he was unable to find appellant.
Staff contacted appellant on his cell phone, but he hung up as soon as
he realized who was calling; staff left messages for appellant to contact them
or his family. Appellant’s aunt called
his cell phone but he hung up on her as well.
On January 25, appellant was found in the Santa Rosa area by
“MAGNET.†He was apprehended and taken
to juvenile hall.
When
interviewed, appellant said that he did not premeditate running away but
spontaneously decided to go to the cemetery to visit the graves of his twin
daughters, then met up with friends and smoked marijuana and drank tequila with
them. He did not feel he could return
after becoming intoxicated, stayed at a friend’s house without telling anyone
where he was, and planned to remain in the community until he was caught. Appellant stated that he liked the probation
camp and expressed appreciation for the program assisting him in obtaining his
general equivalency diploma, but he understood he would not be accepted back. Feeling that an extended term in juvenile
hall would not benefit him, appellant wanted to be placed at a program called
Tahoe Turning Point, which he had heard had a similar environment to the
probation camp. Appellant intended to
“do things ‘on his own’ †as his father had told him he would no longer provide
support.
Appellant’s
parents divorced when he was a young child.
His mother has a history of substance
abuse and incarceration. His father
was arrested for a domestic violence offense in 1999 and convicted of a driving
under the influence in 2004. Appellant
has three brothers from his parents’ relationship and two younger brothers from
his father’s relationship with appellant’s stepmother. Appellant’s father drank heavily and abused
the four older boys during their early childhood. Appellant lived in foster care for six or
seven years. He and his brothers lived
with his stepmother “on occasion†but at the time of his probation interview,
she could not have children living with her because she was being “watched by
CPS†after having had her two children removed from her custody. Appellant spent several months living in
Oregon with his mother, and returned to Sonoma County in February 2010. He had been expelled from school in Oregon
for fighting and had not attended school in California since his return. Appellant’s oldest brother was involved in
the 2010 offenses and had previously been declared a ward of the court; another
brother was also a ward of the court and the younger of the older boys had been
cited for possession of marijuana at school but the matter was dismissed.
Appellant began
drinking alcohol at age 12, became “hooked†and “always drinks to excess,†and
has experimented with many illicit substances.
He told the probation officer he was not a gang member but was an
associate of the Sureno gang. He has
several tattoos which he denied are gang related. He began to hate Nortenos in his freshman
year of high school, after an incident when he was “ ‘jumped by a group of
them.’ †He said he had avoided fighting
in juvenile hall because his martial arts instructor told him he would be
kicked out of his martial arts school if he got into a fight in juvenile hall.
When interviewed
after the offenses in October 2010, appellant’s father, who had been sober for
seven years, told the probation officer he did not know what to do to help his
sons because they would not listen to his advice or directives. He felt appellant’s behavior was partly due
to his use of drugs and alcohol, felt appellant’s girlfriend was a bad
influence on him, and did not understand his sons’ attraction to gangs. After the present offense, appellant’s father
expressed frustration that he had worked for a long time with the probation
camp and been supportive of appellant, but appellant continued to violate the
rules. He wanted appellant to remain in
custody because he did not believe he could trust appellant’s behavior and did
not want to be responsible for supervising appellant because of his job and
other obligations. He stated that he was
tired of helping appellant and paying for services when appellant would not
follow the rules.
DISCUSSION
I.
Appellant
challenges the dispositional order as unauthorized by section 202 because it
requires him to spend time in county jail.
Section 202, which specifies the dispositional alternatives available to
juvenile courts, does not provide for a commitment to county jail. (§ 202, subd. (e).)
As
indicated above, appellant was 17 and a half years old when he committed the present
offense. Noting his relapse into alcohol
use, lack of family support and need for rehabilitative services, the probation
department recommended that appellant be committed to juvenile hall until his
18th birthday. The probation report
stated that this would allow appellant “to achieve a significant period of
sobriety before he transitions back into the community†and that he would have
access to weekly 12-step meetings and individual substance abuse counseling in
juvenile hall. While appellant was in
custody, the probation department would place him on the waiting list for the
Tamayo House, to provide him a support system following his release.
At
the dispositional hearing, the juvenile court rejected this
recommendation. The judge told appellant
he had gotten a “huge break†when the prosecutor allowed him to admit the
misdemeanor escape charge, because this had taken away the option of committing
appellant to the Department of Corrections and Rehabilitation Division of
Juvenile Facilities (DJF), which the judge viewed as an appropriate
disposition.
title="">[5] After describing appellant’s 2010 offense as
a “vicious assault,†the judge stated, “[Y]ou’ve been given all kinds of
opportunities to undo that, and your response has been to thumb your nose at the
court. You’re nearly 18. And frankly, it’s time for the Court to
handle it as if you were a person nearly 18 who has received all kinds of
opportunities.†The court then stated
its intention to impose a term of “540 days to 750 days to be served in any
penal institution, including the MADF when he reaches the appropriate age,
should he still be in custody at that time.
Of course, when he turns 18 in July he can make a request that he
transfer to MADF, if he so desires.†Appellant’s attorney argued in favor of
probation’s recommended plan, but the court ordered the 540 to 750-day term,
directing that “[t]here will be no early release, parole, things of that
nature. . . . Upon the completion of his
sentence, probation is to be revoked and the matter dismissed.â€
Under
section 208.5, subdivision (a), a minor may be housed in a facility for
juvenile offenders until he or she is 19 years old, at which point, “upon the
recommendation of the probation officer,†he or she must be moved to county
jail unless the court orders continued juvenile detention.
will turn 19 on July 16, 2013, roughly 17 months into his minimum commitment
term of 18 months. He argues that
because he will be transferred to county jail when he turns 19, facing a
minimum of one month and possible eight months of custody, the dispositional
order improperly includes a commitment to county jail.
A
number of cases address whether and when a juvenile court may order a county
jail commitment for a ward who is over the age of 17 but still under the
jurisdiction of the juvenile court.
1090, 1096, involved a ward who committed his offense at 17 years of age,
turned 18 before disposition and was ordered to serve 120 days in county
jail. Reversing the county jail
commitment, the In re Jose H. court
explained: “We are constrained by the
express language of the applicable statutes to hold that the juvenile court is
not authorized to commit a ward to county jail. The juvenile court is a
creature of statute, and remains unique and different from the adult court
system. Should the Legislature see fit to expand the range of dispositional
alternatives to include county jail for 18-year-old wards, they will do so.†(Id.
at p. 1099.)
3, also involved a ward who had turned 18 before disposition. The probation department recommended that he
serve 180 days in county jail. (
180 days, explaining that when he arrived at juvenile hall he “will then be committed to the county jail, and remanded
to the custody of the Department of
Corrections.†(Id. at pp. 4-5.)
“procedural subterfuge†of committing the ward to juvenile hall when the
juvenile court’s remarks demonstrated that it intended the disposition to be a
county jail commitment. (
608, 611-612, took a different view of a juvenile court’s order committing the
ward to juvenile hall with the understanding he would be transferred
immediately to county jail. The juvenile
court in that case ordered the ward confined “ ‘in an authorized facility[,]’â€
stating that it “could not ‘make a direct commitment to the county jail
. . . .’ †but—because the ward was 20 years old at the time he
violated probation—“not[ing] that section 208.5 authorizes the probation
officer to exercise discretion to . . . ‘remove [the ward] from juvenile hall
to the county jail.’†(
that the juvenile court improperly committed the ward directly to county jail,
holding that “sections 202 and 208.5 authorize the court to order the ward to
be confined in a juvenile facility and then, upon recommendation of the
probation officer, immediately delivered to a local adult facility to serve the
period of confinement.†(
at p. 612.) Disagreeing with
that although the juvenile court cannot commit a ward over the age of 17
directly to county jail, “it does not follow that the court cannot commit a
ward 19 years of age or older to a juvenile detention facility with the
understanding that, because the probation officer so recommends, the ward will
be delivered to the sheriff for confinement in county jail pursuant to section
208.5. Such a disposition is not
a ‘procedural subterfuge’ to ‘condone an unauthorized disposition by the
juvenile court.’ (In re Kenny A.,
supra, 79 Cal.App.4th at p. 8.) It is a legitimate application of the
statutory scheme that allows the now-adult ward to be housed in a juvenile
detention facility until the age of 19, at which time he or she must be
delivered to a local adult facility unless the court orders continued
detention in the juvenile facility. (§ 208.5.) When the court (1) commits a
ward 19 years of age or older to a juvenile facility, (2) knows the probation
office recommends that the ward be delivered to an adult detention facility,
and (3) declines to exercise the court’s discretion to order continued housing
in the juvenile facility, the disposition is faithful to both section 202,
subdivision (e)(4), and section 208.5.†(
In re
Ramon M. (2009) 178 Cal.App.4th 665, 670, 674-675, demonstrates that
outside the context of a ward who is 19 years of age or older and, therefore,
subject to the statutory provision for transferring wards of that age to adult
facilities. In re Ramon M. found error in the juvenile court’s order committing
an 18-year-old ward to serve 365 days in “ ‘juvenile hall or the appropriate
facility.’ †(In re Ramon M., supra, at
p. 670.) The ward had been detained in
county jail and asked the court to place him in juvenile hall, but the court
denied this request. (
In re Ramon M. held that
because the juvenile court lacked statutory authority to commit an 18-year-old
directly to county jail, “the juvenile court's
order should have been more specific, directing the probation department to
place him only in an appropriate juvenile facility.†(
Ramon M. court noted that because Ramon was under the age of 19 at the time
of disposition, “the provision for transferring wards over that age does not
enter into our decision here.†(
It is
abundantly clear that the court in the present case lacked authority to commit
appellant directly to county jail.
Respondent urges that the court did not do so: According to respondent, the court’s order
does not require that appellant ever be transferred to county jail but only
allows for that option once appellant turns 19.
In our view, the situation is somewhere in between these alternative
interpretations. Unlike in the cases
described above, the order neither directly commits appellant to jail nor
contemplated an immediate transfer to
jail. It could not have done so, as
appellant was only 17 years old at disposition.
But the court’s remarks make clear that it intended for appellant to
serve time in county jail when be attained the “appropriate†age. This was improper. Once confined to juvenile hall, appellant
would be subject to transfer to county jail once he turned 19—
and if the trial court did not order
continued detention in a juvenile facility.
The juvenile court, at disposition in the case of a 17-year-old ward,
could not direct the future placement of the ward when he turned 19.
Respondent
urges that this appeal is not ripe because it is not certain at this point that
the court would not permit appellant to remain at juvenile hall after his 19th
birthday. But the vice of the order is
its apparent attempt to prejudge just this issue, to make the transfer to jail
at that time automatic. It was within
the court’s discretion to order a term of confinement that would extend beyond
appellant’s 19th birthday, but not to dictate the results of the procedure
called for in section 208.5. As in
have directed the probation department to place appellant in an appropriate
juvenile facility, without reference to the county jail. (In re Ramon M., supra, 178 Cal.App.4th at p. 675.) The order shall be modified to strike the
language “any penal institution including MADF.â€
II.
contends that even if he could serve his entire term in juvenile hall, the
court abused its discretion in imposing a lengthy fixed term disposition. He contends this disposition is unauthorized
by statute and contrary to the rehabilitative purpose of the
In
keeping with its stated purpose of providing for “the protection and safety of the public and each minor under the
jurisdiction of the juvenile court†(§ 202, subd. (a)), the juvenile court law
provides that “[m]inors under the jurisdiction of the juvenile court as a
consequence of delinquent conduct shall, in conformity with the interests of
public safety and protection, receive care, treatment, and guidance that is
consistent with their best interest, that holds them accountable for their behavior,
and that is appropriate for their circumstances. This guidance may include
punishment that is consistent with the rehabilitative objectives of this
chapter.†(§ 202, subd. (b).)
As our Supreme Court has explained, juvenile proceedings
are “primarily
rehabilitative, disallowing punishment in the form of retribution. [¶]
Significant differences between the juvenile and adult offender laws underscore
their different goals: The former seeks to rehabilitate, while the latter seeks
to punish. The determinate sentencing law, which governs sentencing of adult
offenders who have committed a crime for which a ‘statute specifies three
possible terms,’ requires the trial court to choose a set term (Pen. Code, §
1170, subd. (b))—a lower, middle, or upper term—from the adult tripartite
sentencing scheme. The determinate sentencing law ‘provides for
Cal.App.4th 708, 715, italics added.) In
contrast, juveniles are committed ‘for indeterminate
terms designed to rehabilitate.’ (Ibid.,
italics added.)†(In re Julian R. (2009)
47 Cal.4th 487, 496-497.)
1204 rejected a challenge similar to appellant’s here. In that case, the minor argued that the
juvenile court lacked authority to impose a minimum period of confinement (120
days) in a camp. Like appellant, the
minor argued the minimum period of confinement undermined the rehabilitative
objectives of the juvenile law by diminishing the minor’s incentive to progress
toward rehabilitation. (
Ronny P. held that although not expressly authorized by statute, the order
was “authorized
by the broad discretion afforded to juvenile courts to make dispositional
orders and impose conditions under Welfare and Institutions Code section
730.†(Id. at p. 1207.)
Section
730, subdivision (b), provides that when a minor who has been made a ward under
section 602 “is. . . committed to the care, custody, and control of
the probation officer, the court may make any and all reasonable orders for the
conduct of the ward. . . . The court may impose and require any
and all reasonable conditions that it may determine fitting and proper to the
end that justice may be done and the reformation and rehabilitation of the ward
enhanced.†The In re Ronny P. court reasoned, “Welfare and Institutions Code
section 730 does not expressly authorize the imposition of any minimum period
of confinement in camp. However, Welfare
and Institutions Code section 730 has been broadly interpreted to
authorize a juvenile court to order a juvenile confined to juvenile hall for a
period of time as a condition of probation. (
896–899; In re Ricardo M. (1975) 52
Cal.App.3d 744, 750-751.) The purpose of such a
confinement order is to impress upon the juvenile the seriousness of the
misconduct, without the imposition of a more serious commitment. (In re Ricardo M., supra, 52
Cal.App.3d at p. 749.) The confinement order informs the juvenile that continued
misconduct will lead to even more serious consequences and thus encourages
rehabilitation. (Ibid.) In our view, a similar rationale supports an
order for a minimum period of camp confinement.†(In re
Ronny P., supra, 117 Cal.App.4th at p. 1207, fn. omitted.)
The
order in the present case is analogous to that in In re Ronny P. in that it requires appellant to serve a minimum
period of confinement, albeit a longer one than involved in that case. We agree with the In re Ronny P. court that such a minimum term can serve
rehabilitative purposes by impressing upon the minor the seriousness of the
conduct underlying the commitment. This
was particularly true here, where appellant’s new offense demonstrated his failure
at a less restrictive placement. The
court stated that it was imposing this term because of the seriousness of
appellant’s original offense and the fact that he was almost 18 and had been
given “all kinds of opportunities†and “your response has been to thumb your
nose at the court.†Contrary to
appellant’s argument, the order built in an incentive for appellant to work
toward rehabilitation by providing for a range in the term of commitment.
Appellant
contends that the length of the commitment—18 to 25 months—demonstrates that
the purpose of the order was punishment rather than rehabilitation. It was within the court’s discretion to
aggregate the terms for the offenses in the present petition and the previously
sustained petition. (
448, 454.) Since the court here made
clear that it was considering appellant’s original offenses in determining the
appropriate disposition, the length of the term imposed must be considered with
that in mind. “ ‘After a new petition is
sustained under section 602, . . . the court may consider the
juvenile’s entire record before exercising its discretion at the dispositional
hearing and may rely on prior sustained section 602 petitions in determining
the proper disposition and maximum period of confinement.’ †(
553.) At a minimum, considering only the previously sustained robbery offense,
the maximum term would be five years.
(Pen. Code, § 213, subd. (a)(1)(B)(2).) This is considerably longer
than the term the trial court imposed at disposition. As we have said, while “punishment in the
form of retribution†is impermissible in juvenile proceedings (In re Julian R., supra, 47 Cal.4th at p. 496.), “punishment that is consistent with the rehabilitative objectives†of the
juvenile court law is appropriate. (§
202, subd. (b).) The record reflects that rehabilitative services were
available to appellant in juvenile hall:
The probation report stated that in addition to being afforded an
opportunity to maintain sobriety, appellant would “have access to weekly
12-step meetings and to individual substance abuse counseling in Juvenile
Hall.â€
Appellant urges that Sonoma County does not intend wards
to be housed in juvenile hall for long periods, and “does not purport to
rehabilitate its residents,†citing statements on the county’s website. This material was not presented to the
juvenile court, where appellant made no record of the asserted lack of
rehabilitative services. It is
appellant’s burden to present a record affirmatively demonstrating error, and
any uncertainty is resolved against him.
(People v. Green (1979) 95
Cal.App.3d 991, 1001.)
name="_ftnref8" title="">[8]
We accept appellant’s contention
that juvenile hall is most often utilized as a temporary place of
detention. The California Code of
Regulations defines “juvenile hall†as “a county facility designed for the reception and
temporary care of minors detained in accordance with the provisions of this
subchapter and the juvenile court law.â€
(Cal. Code Regs., tit. 15, § 1302.)
Section 850 directs the board of supervisors of every county to provide
and maintain a suitable house or place for the “detention†of wards and
dependent children of the juvenile court and of persons alleged to come within
the jurisdiction of the juvenile court,†to be known as the county’s “juvenile
hall.â€
Nevertheless,
there are circumstances when juvenile hall can be used as a post-disposition
placement. Section 730, subdivision (a),
authorizes the juvenile court to commit a minor adjudged to be a ward under
section 602 to “a juvenile home, ranch, camp, or forestry camp. If there is no county juvenile home, ranch,
camp, or forestry camp within the county, the court may commit the minor to the
county juvenile hall.†We are aware of
no statutory upper limit on a commitment to juvenile hall.
Appellant
made no showing in the juvenile court that there was an appropriate county
facility the court should have considered in lieu of juvenile hall. His suggestion then was that he be sent to
juvenile hall for approximately six months until he turned 18 and then
transitioned to “a living situation that would be independent,†with the
support of probation. On appeal, he
contends the commitment to juvenile hall was improper because Tamayo House was
an available county placement. Although
no record on this point was developed in the trial court either, it appears
that Tamayo House is not a county program but rather a group housing facility
for former foster youth and young adults run by a non-profit agency. (Social Advocates of Youth, The
Mary and José Tamayo Village
July 3, 2013].) Appellant does not
explain how the juvenile court could have ordered a commitment to Tamayo House;
the probation report portrays it as a supportive environment at which it hoped
to assist appellant in securing a place after
his release from a period of confinement.
As
we have described, the juvenile court, at disposition, expressed frustration
with prior proceedings that had resulted in the court’s inability to impose the
disposition it truly felt appropriate, a commitment to DJF. The court made
clear its view of the seriousness of appellant’s original offense and his
subsequent violations and relapses. It
is evident that the court intended a disposition that would come as close as
possible to the DJF commitment it would have preferred. None of this, however, renders the length of
the commitment an abuse of discretion.
The court believed appellant’s conduct required a significant period of
secure confinement. Camp placements were
no longer an option; according to the probation report, appellant’s behavior
demonstrated he was “no longer amenable to services within the Probation Camp
milieu.†In effect, the court’s hands were tied: Juvenile hall was the only available option
for the secure placement the court believed appellant required.
III.
The
parties agree that the juvenile court failed to set appellant’s maximum period
of confinement as required by section 726, subdivision (c), or to calculate his
secure custody credits. Section 726,
subdivision (d), requires the court to “specify
that the minor may not be held in physical confinement for a period in excess
of the maximum term of imprisonment which could be imposed upon an adult
convicted of the offense or offenses which brought or continued the minor under
the jurisdiction of the juvenile court.â€
The maximum period of imprisonment “means the longest of the three time
periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the
Penal Code, but without the need to follow the provisions of subdivision (b) of
Section 1170 of the Penal Code or to consider time for good behavior or
participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus
enhancements which must be proven if pled.â€
(§ 726, subd. (d).) The court may elect to “aggregate the period of
physical confinement on multiple counts or multiple petitions, including previously
sustained petitions adjudging the minor a ward within Section 602,†in which
case the maximum term of imprisonment “shall be the aggregate term of
imprisonment specified in subdivision (a) of Section 1170.1.†(§ 726, subd. (d).) “If the charged offense is a misdemeanor or a
felony not included within the scope of Section 1170 of the Penal Code, the
‘maximum term of imprisonment’ is the longest term of imprisonment prescribed
by law.†The maximum period of
confinement must be noted in the written minutes. (Cal. Rules of Court, rule 5.795(b).)
The juvenile court is also required to calculate the
number of days credit the minor is entitled to for time spent in custody before
the dispositional hearing. (
1058, 1067; Pen. Code, § 2900.5.) Here, the court stated at the dispositional
hearing that appellant had “approximately
1,611 days of stat time,†but neither explained the basis of its calculation
nor stated the precise number of credits.
The record reflects that appellant was detained for the robbery on
October 1, 2010, and remained in a secure placement until he was released on
camp aftercare on July 29, 2011. He was
detained again on October 7, 2011. The
record does not indicate how long appellant remained in secure custody before
the furlough that preceded his detention on January 25, 2012.
The matter must be remanded for calculation of
appellant’s secure custody credits and determination of his maximum period of confinement under
section 726.
The matter is remanded to the juvenile court for
calculation of secure custody credits and determination of the maximum period
of confinement. The dispositional order
committing appellant to “any penal institution including MADF†is stricken. In all other respects, the dispositional order
is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1]
Unless otherwise indicated, all further statutory references are to the Welfare
and Institutions Code.
name="_ftn2" title=""> [2]
The petition alleged four felony counts—robbery, threat, attempt to dissuade a
witness, and assault with a deadly weapon—with allegations of personal use of a
knife in committing the robbery and threat offenses. Appellant’s admissions were made under an
agreement that the attempt to dissuade a witness count would be reduced to a
misdemeanor, the enhancement allegation under the robbery count would be
dismissed, and the remainder of the petition would be dismissed.
