In re Richard G.

Filed 5/10/07 In re Richard G. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Wayne C. Denton, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed in part; reversed in part; and remanded with directions.

Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

The minor, Richard G., appeals from the May 3, 2006 order declaring him a ward of the court and placing him in a camp community placement program. (Welf. & Inst. Code, 602.) The juvenile court sustained two of the allegations of a delinquency petition filed March 2, 2006, charging the minor with grand theft and live ammunition possession. (Pen. Code,^[1] 487, subd. (c), 12101, subd. (b)(1).) The juvenile court rescinded its August 31, 2005, order, which had placed the minor home on probation following his prior adjudication for firearm and ammunition possession. ( 12101, subds. (a)(1), (b)(1).) The juvenile court declared the grand theft a felony and the ammunition possession a misdemeanor. The juvenile court ordered the maximum confinement to be four years. The minor was given predisposition credit of 70 days. The minor argues the juvenile court: improperly set his confinement time beyond the statutory maximum; failed to exercise its discretion in setting the confinement term; and improperly calculated his predisposition credits. We affirm the wardship order but remand the matter with directions to calculate the precommitment custody credits and the maximum confinement term.

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials]; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) On December 30, 2005, David G. was waiting for a traffic light with his bicycle. The minor approached David. The minor demanded he be given the bicycle. The minor took the bicycle and pulled off Davids gold chain and cross. The minor fled the area. David went home to tell his parents what had occurred. Davids parents called the police. Police officers later showed David a photographic lineup. David selected the minors photo from the lineup. The minor had the same hair and facial features of the individual who took Davids belongings. David was 95 percent sure of his identification at the time. David did not recognize the minor at the adjudication hearing. When the minor was detained, a probation search of his residence recovered seven .40 caliber bullets.

First, the minor argues that the juvenile court improperly set his maximum confinement time at four years. In the case of In re Eric J. (1979) 25 Cal.3d 522, 536, the California Supreme Court held: Under [Welfare and Institutions Code] section 726, if the juvenile court chooses to sentence consecutively on multiple counts or multiple petitions, the maximum term must be specified in accordance with the formula set forth in subdivision (a) of Penal Code section 1170.1, i.e., the sum of the principal term (the longest term imposed for any of the offenses) and subordinate terms (one-third of the middle term imposed for each other offense). (Fn. omitted; see also Welf. & Inst. Code, 726, subd. (c); In re David H. (2003) 106 Cal.App.4th 1131, 1133-1134; In re Adrian R. (2000) 85 Cal.App.4th 448, 454; People v. Murray (1994) 23 Cal.App.4th 1783, 1789.) The Eric J. court further held that the application of section 1170.1, subdivision (a), applies to misdemeanors as well as felonies in setting the confinement time of minors. (In re Eric J., supra, 25 Cal.3d at pp. 537-538; People v. Murray, supra, 23 Cal.App.4th at p. 1789.)

In this case, pursuant to section 18, the maximum statutory punishment for a felony section 487, subdivision (c) offense is three years. (See People v. Crossdale (2002) 27 Cal.4th 408, 410-412 [the crime of grand theft is a wobbler punishable as either a felony or a misdemeanor].) Pursuant to section 19, a misdemeanor section 12101, subdivision (b)(1) ammunition possession offense is punishable by a maximum term of six months. As a result, the maximum term the juvenile court could impose in this case is three years for the section 487, subdivision (c) grand theft offense and two months or one-third the maximum term, for the section 12101, subdivision (b)(1) offense. ( 1170.1, subd. (a).) However, it appears that the juvenile court also included its August 31, 2005 adjudication in the maximum confinement time, noting: The Court finds minor in violation of his probation. The home on probation order is terminated. The Court orders minor into a mid-term camp program on the same terms and conditions as those dated August 31, 2005 . . . . The minute order indicates a six-month camp program. The record does not reflect, however, the maximum confinement time imposed on August 31, 2005, relative to the minors firearm and ammunition possession.

The minor requests that the juvenile court exercise its discretion to set the confinement time, citing to Welfare and Institutions Code^[2]section 731, subdivision (b), which provides in pertinent part: A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period 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. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. . . . (Italics added; see also In re Jacob J. (2005) 130 Cal.App.4th 429, 436.) However, section 731, subdivision (b), relates to those juveniles committed to what is now known as the Division of Juvenile Justice of the Department of Corrections and Rehabilitation. Section 731 on its face applies only when the juvenile court commits the minor to the juvenile justice division. In the case of In re Alex N. (2005) 132 Cal.App.4th 18, 26, our colleagues in the Court of Appeal for the Sixth Appellate District held, [Welfare and Institutions Code s]ection 731 provides an additional rule that applies only to [juvenile justice division] commitments and is potentially more restrictive. (See also In re Geneva C. (2006) 141 Cal.App.4th 754, 758-760 [the exclusive reference to the Department of the Youth Authority demonstrates that the Legislature intended to provide discretion only in computing the confinement term to CYA].) Here, the minor was removed from the custody of his parent and sent to mid-term camp community placement rather than the juvenile justice division. The juvenile court continues to retain control over the minor pursuant to section 726. As a result, the terms of section 731 do not apply. The juvenile court had no discretion to set his confinement time based upon the facts and circumstances of the matter. However, we remand the matter to allow the juvenile court to clarify its four-year confinement time order.

Second, the minor argues and the Attorney General agrees that the record is unclear regarding the juvenile courts grant of 70 days of predisposition credit. In the case of In re Eric J., supra, 25 Cal.3d at page 536,the California Supreme Court held: [I]n order to carry out the mandate of section 726, subdivision (c), that a juvenile 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 same offenses, [the minor] must be given precommitment credit for the [time] he was detained in juvenile hall pending resolution of these charges. In the case of In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067, we held, [W]hen a juvenile court elects to aggregate a minors period of physical confinement on multiple petitions pursuant to [section 726, subdivision (c) and Penal Code section 1170.1, subdivision (a)], the court must also aggregate the predisposition custody credits attributable to those multiple petitions. (See In re Eric J., supra, 25 Cal.3d at pp. 533-534; In re Antwon R. (2001) 87 Cal.App.4th 348, 352.)

In this case, the juvenile court awarded the minor 70 days of predisposition credits. However, the minor readily acknowledges that he was taken into custody on March 1, 2006. The disposition took place on May 3, 2006, 64 days later. The juvenile court did not indicate whether it had included credit for time the minor may have spent in custody on the prior disposition. As a result, we reverse the precommitment credits order and remand the matter to the juvenile court to allow for the computation of the award on the record. (In re Emilio C., supra, 116 Cal.App.4th at p. 1068; In re Antwon R., supra, 87 Cal.App.4th at p. 353.)

The matter is remanded to the juvenile court with directions to: calculate the amount of precommitment custody credits on the record; set forth the calculation for the maximum confinement term based upon the current and prior sustained petitions on the

record; and correct the minute order to reflect these calculations. The wardship order is

affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.