Filed 6/1/22 In re C.Q. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge.

Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Minor C.Q. appeals from a disposition order adjudging her a ward of the juvenile court and committing her to an in-custody drug treatment program. On appeal, minor argues that (1) the juvenile court failed to correctly award her predisposition custody credits against her maximum term of confinement, and (2) the minute order reflecting the terms of her probation should be corrected to remove the conditions not orally ordered by the juvenile court at the disposition hearing. The People agree as to the first issue but disagree as to the second. We order the disposition order modified to award minor eight days’ predisposition custody credits against her maximum term of confinement. As modified, we affirm.

PROCEDURAL SUMMARY

On May 25, 2021, the Tulare County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a))[1] alleging minor committed assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1).

On August 12, 2021, the juvenile court found true beyond a reasonable doubt that minor committed misdemeanor assault on count 1.

On September 13, 2021, the juvenile court adjudged minor a ward of the juvenile court, placed her on probation, and committed her to the “Short Term Program” for up to 180 days. The court calculated minor’s maximum term of confinement at one year.

On October 12, 2021, minor filed a notice of appeal.

FACTUAL SUMMARY[2]

On May 21, 2021, N.R. believed that a young woman was going to come to her home and they were going to fight. Instead, on the same date, five other young women drove to N.R.’s home.[3] Four of the young women, including minor, exited the vehicle near the apartment complex in which N.R. lived.

Two young women fought with N.R. A video recording of the fight was admitted as People’s Exhibit 1. Minor recorded the video. The video depicted N.R. and a first young woman—with whom N.R. had previously had a verbal altercation—approach each other and begin to fight in front of the apartment complex. N.R. was quickly dragged to the ground, and for about 30 seconds, the first young woman held her by the hair and repeatedly punched her on and around her head and kicked her. The first young woman then called to a second young woman who walked over and punched N.R. approximately 10 times while N.R. was on the ground and kicked her once on the back. The second young woman’s attack on N.R. occurred in less than 10 seconds. The first young woman then continued to punch and kick N.R. while she was on the ground for approximately 10 seconds.

Before the fight, N.R. messaged the first young woman when she was late to the fight that they had scheduled. She responded, “I’m going,” meaning that she was on her way to N.R.’s residence. N.R. responded that she did not “have all day for this.”

Woodlake Police Officer Frances Lopez was on duty at 6:40 p.m. on May 21, 2021. He was dispatched to a call reporting a battery at the apartment complex. When he arrived, he spoke to N.R.’s mother and then to N.R. He observed a video posted by the first young woman on a social media website regarding her intent to fight N.R. That video was admitted as People’s Exhibit 2. N.R. testified that numerous “random people” had sent that video to her after the fight.

DISCUSSION

I. Predisposition Custody Credits

Minor contends that the trial court failed to award her eight days of predisposition custody credits against her maximum term of confinement. The People agree, as do we.

Between the date the petition was filed and the disposition hearing, minor was committed to custody for eight days as follows: Minor was taken into custody on May 22, 2021. She remained in custody for five days and was released on May 26, 2021. She was taken into custody again on July 28, 2021. She remained in custody for three days and on July 30, 2021, was released from custody.

At the disposition hearing, the juvenile court ordered an out-of-home placement but did not award minor predisposition custody credits toward minor’s maximum term of confinement.

“If the minor is removed from the physical custody of [his or her parent] … as the result of an order of wardship made pursuant to [s]ection 602, the order shall 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 .…” (§ 726, subd. (d)(1).)

“In a juvenile delinquency proceeding, ‘a minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. [Citations.] It is the juvenile court’s duty to calculate the number of days earned, and the court may not delegate that duty.’ ” (In re A.M. (2014) 225 Cal.App.4th 1075, 1085; see In re Eric J. (1979) 25 Cal.3d 522, 536.)

Here, minor was removed from the custody of her parent, but the trial court did not award minor presentence custody credits. We order the disposition order amended to award minor eight days’ presentence custody credit against her maximum term of confinement.

II. Conditions of Probation

Minor next argues that the minute order incorrectly reflects the juvenile court’s oral pronouncement of terms of probation. Specifically, she contends that the curfew condition and the gang condition were not ordered by the court. She contends the minute order must be modified to remove those conditions. The People disagree. They argue that the probation report—which the trial court explicitly noted that it read—recommended the curfew and gang conditions and the juvenile court adopted those conditions in its order. They argue further that the terms and conditions of the probation form was attached to the disposition order signed by the court and indicated the court’s intent to impose those conditions. We agree with the People.

Ordinarily, when a discrepancy exists between a trial court’s oral pronouncement and the minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) Discrepancies between the judgment as orally pronounced and as entered in the minutes or abstract of judgment are presumed to be the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.) However, this is not an inflexible “mechanical rule.” (People v. Smith (1983) 33 Cal.3d 596, 599 [giving preference to the part of the record “ ‘entitled to greater credence’ ” under “ ‘the circumstances of [that] particular case’ ”]; People v. Cleveland (2004) 32 Cal.4th 704, 768.)

Here, the presumption that the discrepancy between the oral pronouncement on one hand, and the minute order and terms and conditions of probation form on the other, is the result of a clerical error does not hold because the juvenile court signed the order to which the terms and conditions of probation form was attached, approving the conditions of probation as written. Further, neither party disputed the imposition of those terms as recommended by the probation officer’s report, and the juvenile court’s oral pronouncement indicated no intent to deviate from the probation department’s recommendation. On this record, we conclude that the form reflecting minor’s terms and conditions of probation is entitled to greater credence regarding the terms and conditions of probation that the juvenile court intended to impose.[4]

DISPOSITION

The disposition order is modified to award minor eight days’ predisposition custody credit against her maximum term of confinement. The juvenile court is directed to prepare an amended minute order reflecting the modification and forward a copy to the relevant entities. As modified, the order is affirmed.

* Before Levy, Acting P. J., Detjen, J. and Snauffer, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Because minor’s challenges to the disposition relate only to the February 17, 2021 wardship petition, we provide only a summary of the facts relating to that petition.

[3] N.R. explained that she thought that the young woman that she actually fought was going to send someone else to fight N.R. Instead, the young woman came to fight N.R. herself.

[4] If minor seeks to further challenge imposition of those terms, she may bring a motion before the juvenile court to modify the terms and conditions of her probation any time during her term of probation. (§ 778; In re Luis F. (2009) 177 Cal.App.4th 176, 192.)