In re L.J.

Filed 9/27/06 In re L.J. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, S. Robert Ambrose, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part and reversed in part with directions.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

L. J. appeals from an order declaring her to be a ward of the court pursuant to Welfare and Institutions Code section 602 (section 602) and placing her in the camp-community placement program. On appeal, she challenges the juvenile court’s failure to calculate her maximum period of confinement and predisposition custody credits, as well as one of the conditions of probation imposed. We agree the case must be remanded for calculation of appellant’s maximum period of confinement and predisposition custody credits, and that the challenged probation condition was improper.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was taken into custody on April 28, 2004 and detained in juvenile hall after she solicited an act of prostitution from an undercover police officer. On April 29, 2004, a section 602 petition was filed charging appellant with soliciting prostitution (Pen. Code, § 647, subd. (b)). Appellant was released from juvenile hall sometime after May 14, 2004.

Appellant was taken into custody and detained in juvenile hall on January 11, 2005 after she and two other girls took property from a woman who was walking past them. A second section 602 petition was filed on February 3, 2005, charging appellant with attempted second degree robbery (Pen. Code, §§ 211, 664). Appellant was released from juvenile hall on February 3.

After appellant failed to appear at a scheduled hearing, she was taken into custody on May 19, 2005. She was detained in juvenile hall until the disposition hearing on June 9, 2005.

At the hearing, the juvenile court declared appellant to be a ward of the court and ordered her placed into a three-month camp-community placement program, after which she would be released on probation. Once she was released from camp, she was to go to school and “get C’s and above.” The court’s minute order states that she is not to be held in physical confinement for a period exceeding five years and two months. It also gives her predisposition custody credit of 42 days.

DISCUSSION

Calculation of Maximum Period of Confinement and Predisposition Custody Credit

While the juvenile court’s minute order sets forth a maximum period of confinement and appellant’s predisposition custody credit, there is nothing in the record showing whether the court itself calculated those time periods or how those calculations were made. Rule 1494(b) of the California Rules of Court provides that if a juvenile is declared a ward of the court under section 602 and removed from her parent or guardian’s physical custody, “the court must specify and note in the minutes the maximum period of confinement under [Welfare and Institutions Code] section 726.” Similarly, the court is required to calculate the juvenile’s predisposition custody credits, “and the court may not delegate that duty.” (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.)

The statement of appellant’s maximum period of confinement in the minute order is incorrect. The maximum period of confinement for attempted second degree robbery is three years. (Pen. Code, §§ 18, 213; People v. Moody (2002) 96 Cal.App.4th 987, 990.) The maximum period of additional confinement for prostitution, with a consecutive sentence of one-third of the midterm sentence, would be two months. (Pen. Code, § 19; In re Eric J. (1979) 25 Cal.3d 522, 537-538.) The five-year two-month maximum period of confinement set forth in the minute order therefore is incorrect.

We have no way of determining the correct amount of predisposition custody credits. The record before us contains documentation as to only some of the dates appellant was taken into and released from custody. As appellant points out, however, the record does show that she was in custody over 60 days (In re Eric J., supra, 25 Cal.3d at pp. 533-536; In re Emilio C., supra, 116 Cal.App.4th at pp. 1067-1068; People v. Bravo (1990) 219 Cal.App.3d 729, 735), while she was given predisposition custody credit of only 42 days. Accordingly, we must remand the matter to the juvenile court with instructions to calculate appellant’s maximum period of confinement and predisposition custody credits and set forth those amounts in its minutes. (See In re Emilio C., supra, at pp. 1068-1069.)

Conditions of Probation

Appellant challenges the juvenile court’s requirement as a condition of probation that she get grades of C or better in school. She claims the condition was unconstitutionally vague and overbroad and that it was improper absent a showing she was “capable of earning such high grades.” The People assert that she has waived her challenge to this condition of probation by failure to object below. Notwithstanding the People’s claim of waiver, we agree with appellant.

As noted in In re Juan G. (2003) 112 Cal.App.4th 1 at page 7, “a probation condition of satisfactory grades can be rationally related to rehabilitation and prevention of future criminality.” It is not overbroad. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018; People v. Pointer (1984) 151 Cal.App.3d 1128, 1138-1139.)

While a trial court may require a probationer to meet a defined academic standard, such as maintaining grades of C or better in school, there must be reliable evidence that the probationer has the intellectual capacity to meet that standard. (In re Juan G., supra, 112 Cal.App.4th at p. 8, fn. 23.) Here, there was none. Accordingly, the condition cannot stand. (Ibid.)

The order is reversed insofar as it states that appellant is not to be held in physical confinement for a period exceeding 5 years and 2 months and that she is given predisposition custody credit of 42 days. The juvenile court is directed to calculate the correct maximum period of physical confinement and predisposition custody credits. Additionally, the juvenile court is directed to strike the condition of probation that the appellant maintain C grades. In all other respects, the order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.