In re Melissa S

Filed 4/13/06 In re Melissa S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

Introduction

Alleging that the juvenile court abused its discretion in committing her to the California Youth Authority (CYA) and failed to exercise discretion in selecting the upper term as the period of confinement, appellant Melissa S. (appellant) requests reversal. The People concede appellant's second contention. We will affirm both the CYA commitment and the court's selection of the maximum term.

Facts and Procedural History

According to Welfare and Institutions Code^[1] section 602 petitions filed on June 15, 2004, February 1, 2005, February 8, 2005, and March 16, 2005, appellant was most recently arrested for multiple counts of possession and use of methamphetamine, check forgery, and receipt of stolen property.

As the result of plea bargains on July 7, 2004, February 24, 2005, and March 23, 2005, four counts were dismissed. Appellant admitted four counts: methamphetamine possession (Health & Saf. Code, §11377, subd. (a)); possession of forged checks (Pen. Code, § 476); receipt of stolen property (Pen. Code, § 496, subd. (a)); and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). All admitted counts, except the drug use, were felonies.

At the time of the recent offenses, appellant had been on probation almost continuously for close to five years. A section 602 petition filed October 27, 2000, alleged a misdemeanor count of burglary after appellant, then 13 years old, entered a department store with intent to commit felony theft. On December 13, 2000, appellant admitted the allegation and was placed on six months probation in the custody of her mother. The terms of probation included, among other things, provisions that appellant violate no law, attend counseling, and perform 30 hours of community service.

On September 4, 2001, a second section 602 petition alleged a July 30, 2001, misdemeanor burglary at another department store. Appellant admitted this allegation on November 7, 2001, was sentenced to 15 days in juvenile hall, and was placed on probation with terms and conditions in the custody of her parents. The terms and conditions of probation now included drug prohibition provisions.

A third section 602 petition, filed on October 3, 2002, alleged felony vehicle theft (Veh. Code, § 10851, subd. (a)), felony receipt of stolen property (Pen. Code, § 496, subd. (a)), driving without a license (Veh. Code, § 12500, subd. (a)), and defacing property with graffiti (Pen. Code, § 594, subd. (a)). A section 777 petition, also filed on October 3, 2002, alleged various probation violations, including failure to attend school and counseling. Appellant was detained in juvenile hall and on October 18, 2002, admitted the receipt of stolen property felony, the driving without a license, and the probation violations. She was again placed on probation with terms and conditions, this time in the custody of her father.

Over the next year, appellant appeared to do well. On November 4, 2003, the probation department recommended her wardship be terminated and the juvenile court so ordered.

However, on June 15, 2004, the district attorney filed the reactivated section 602 petition referenced above. This petition alleged felony drug possession and misdemeanor drug use. Appellant admitted the drug use and the possession allegation was dismissed. Once more, appellant was released on probation in the custody of her father, ordered to do 40 hours of community service, to find a job or enter vocational training, and to enter the informal drug court program. From August to November 2004, appellant had negative drug tests. She did not comply with the community service, employment, or drug counseling terms. On December 9, 2004, appellant failed to appear for a scheduled drug court review hearing. The matter was continued to December 16, 2004. When appellant again failed to appear, the court issued a warrant for her arrest. On January 20, 2005, appellant was arrested on the bench warrant. At a detention hearing on January 24, 2004, she told the court that she had passed a general education diploma (GED) test and had completed the ordered community service. The court gave appellant one week to return with proof of compliance on these items, released her to home supervision with her father, and set the next review for January 31, 2004. At the January 31, 2004, hearing, appellant was again ordered to bring proof of GED completion, proof of counseling, and proof of community service completion. Another review hearing was set for February 10, 2005.

Sometime after she left court on January 31, 2005, appellant called her probation officer and told him she was at work. In fact, she was at an apartment in Palm Springs. A lawful probation search by local police revealed appellant in possession of a folder full of fictitious checks and stolen mail. The stolen mail included stolen checks, bank statements, blank credit card checks, and Internal Revenue Service forms from various victims. Appellant's computer had a template for the manufacturing of fictitious checks. When appellant was arrested, she admitted to the arresting officer that she had provided false information to the court earlier that day.

On February 1, 2005, the district attorney filed a section 602 petition alleging check forgery and receipt of stolen property. On February 2, 2005, the court ordered appellant detained in juvenile hall pending a pretrial hearing on the latest petition. On February 8, 2005, still another section 602 petition was filed, this one alleging drug use in juvenile hall. The charge stemmed from an incident the day before in which appellant had used methamphetamine and had given some of the drug to another detainee.

On March 9, 2005, appellant's probation officer submitted a report recommending appellant be committed to the CYA. The report noted that appellant used cocaine and methamphetamine daily, and that she â€