Filed 4/3/14 In re F.K. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re F.K., a Person Coming Under the Juvenile Court C073827
Law.
THE PEOPLE, (Super. Ct. No. JV134443)
Plaintiff and Respondent,
v.
F.K.,
Defendant and Appellant.
The San Francisco County Juvenile Court found F.K. (the minor) was described
by Welfare and Institutions Code section 6021 in that he committed second degree
robbery (Pen. Code, §§ 211/212.5, subd. (c)), assault by means likely to produce great
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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bodily injury (Pen. Code § 245, subd. (a)(4)), and provided false identification to a police
officer, a misdemeanor (Pen. Code § 148.9, subd. (a)). The San Francisco court
transferred the case to San Mateo County for disposition, where the minor was already a
ward of the juvenile court.
The case was transferred to Sacramento County for disposition after the minor’s
father moved to Sacramento. The juvenile court adjudged the minor a ward of the court,
set the maximum term of confinement at seven years 10 months,2 ordered the minor to
serve 93 days in juvenile hall with 93 days of credit, and approved placement at the Glen
Mills facility in Pennsylvania.
The minor timely appeals. He contends the juvenile court in San Francisco erred
in declining to dismiss the petition pursuant to California Rules of Court, rule 5.774(d).3
He further contends the juvenile court in Sacramento erred in failing to stay the term for
the assault charge pursuant to Penal Code section 654. We agree with the second
contention and shall modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
The Crimes
On the night of December 19, 2012, Andrew Wu was walking through a park in
San Francisco when he was approached by a group of five people. A member of the
group approached and asked to borrow Wu’s cell phone. When Wu refused, the person
grabbed him by the jacket while two others punched and kicked him, taking his cell
phone, keys, wallet, and jacket.
Wu reported the attack to the police, who arrived within a few minutes. The
police tracked the stolen phone to a bus eight blocks from the park. The minor and his
2 This maximum term encompassed charges from other pending petitions not relevant
here.
3 Further undesignated rule references are to the California Rules of Court.
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two codefendants were in the back of the bus; Wu’s phone was found close to where the
three were sitting. One of the three was wearing Wu’s jacket. The minor gave a false
name when the police asked for identification. Wu identified the three as his assailants.
Relevant Proceedings
The section 602 petition was filed on December 21, 2012. The court ordered the
minor detained pending pretrial at his initial appearance on December 24, 2012. On
January 3, 2013, the minor appeared for the pretrial conference and the court set a
contested jurisdiction hearing for January 15, 2013--a date within 15 judicial days of the
court’s initial detention order, as the minor did not waive time.
On January 14, 2013, the People moved to continue the jurisdiction hearing
because the complaining witness was unavailable to testify until January 19, 2013. The
juvenile court continued the jurisdiction hearing to January 22, 2013, finding good cause
to do so, but denied the minor’s request for release. At the beginning of the hearing held
on January 22, 2013, the minor moved for release and dismissal of the petition pursuant
to rule 5.774(d). The court released the minor, but denied his motion to dismiss.
I
Motion to Dismiss
The minor contends the juvenile court erred in denying his motion to dismiss the
petition. Because the court did not hold the jurisdictional hearing within 15 judicial days
of the court’s December 24, 2012, order directing the minor’s detention, the minor
concludes the court was required to dismiss the petition pursuant to rule 5.774(d).
The minor further asserts the court erred in continuing the hearing because
absence of a witness is not a valid ground to continue the hearing under rule 5.776(b) or
(c). Thus due to the lack of “proper grounds for a continuance,” the minor argues, rule
5.774(d) mandated dismissal due to his continued detention beyond 15 judicial days.
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A. The Law
Rule 5.774 governs the setting of jurisdiction hearings. If a minor is not detained,
the rule requires the jurisdiction hearing “must begin within 30 calendar days from the
date the petition is filed.” (Rule 5.774(a).) If a minor is detained, the jurisdiction hearing
“must begin within 15 judicial days from the date of the order of the court directing
detention. If the child is released from detention before the jurisdiction hearing, the court
may reset the jurisdiction hearing within the time limit in (a).” (Rule 5.774(b).) The
remedy for failing to abide by these rules is clear. “Absent a continuance under rule
5.776, when a jurisdiction hearing is not begun within the time limits of (a) and (b), the
court must order the petition dismissed. This does not bar the filing of another petition
based on the same allegations as in the original petition, but the child must not be
detained.” (Rule 5.774(d).)
Continuances are governed by rule 5.776. The juvenile court may grant a
continuance “only on a showing of good cause and only for the time shown to be
necessary.” (Rule 5.776(a).) Written notice for the continuance must be filed and served
on the parties at least two court days before the scheduled hearing, and, absent a waiver
of time, a minor may not be detained “beyond the statutory time limits.” (Rule
5.776(a)(1).) If the juvenile court grants the continuance, the supporting facts must be
stated in the order. (Rule 5.776(a)(2).) Counsel’s failure to object to the continuance
implies consent. (Rule 5.776(a)(3).)
The court must grant a continuance of no more than seven days for the
appointment of counsel, to enable counsel to be acquainted with the case, or to determine
whether the minor’s parent, adult relative, or guardian can afford counsel. (Rule
5.776(b).) The court may grant a continuance of no more than seven days “to enable the
petitioner to subpoena witnesses if the child has made an extrajudicial admission and
denies it, or has previously indicated to the court or petitioner an intention to admit the
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allegations of the petition, and at the time set for jurisdiction hearing denies the
allegations.” (Rule 5.776(c).)
B. Analysis
Initially, we note that the minor appears to argue that his continued detention from
January 15 until January 22 mandated dismissal of the petition regardless of the propriety
of the “good cause” finding for the continuance granted on January 14. We address this
undeveloped argument only to note that the minor presents no authority supporting the
notion that dismissal is the remedy for detention beyond 15 judicial days when a
continuance is secured for good cause. Nor do we see any authority supporting the
notion that dismissal is mandatory, or even warranted, under this circumstance.
In In re Kerry K. (2006) 139 Cal.App.4th 1, cited by the minor in purported
support of his argument, we found error in the juvenile court’s failure to release the minor
from custody despite continuing the jurisdiction hearing for good cause beyond the
statutory limits on detention. (Id. at p. 4.) We did not opine on the remedy for this
prolonged detention, much less hold that the remedy was dismissal. Although we
declined to dismiss the case as moot despite the minor’s release subsequent to his filing
of the writ petition, we concluded only that the minor was entitled to release, not that the
continuance itself was improper and not that dismissal was required. (Id. at pp. 4-5; see
also In re Maurice E. (2005) 132 Cal.App.4th 474, 479 (Maurice E.) [because the minor
“failed to seek immediate writ relief from his extended detention, as he might have done
[citation], the propriety of having kept [the minor] at juvenile hall until October 25 is now
moot”].)
As we discussed ante, the juvenile court originally set the jurisdiction hearing for
the detained minor within 15 judicial days of the December 24, 2012, detention order and
then continued the case while still within that timeframe, finding what it deemed to be
“good cause” to do so. Rule 5774(d) requires that absent a continuance under rule 5.776,
when the court does not begin the jurisdiction hearing within the requisite timeframe--
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here 15 judicial days as the minor was detained--the court must order the petition
dismissed. Here, because the court did continue the hearing before its 15 judicial days to
do so had expired, the only question remaining is whether the continuance was for good
cause as authorized by rule 5.776. If so, the juvenile court did not err when it declined to
dismiss the petition, because rule 5774(d) was not violated.
Rule 5.776(a) allows a continuance “on a showing of good cause.” This tracks the
language of section 682, which states in pertinent part: “A continuance shall be granted
only upon a showing of good cause and only for that period of time shown to be
necessary by the moving party at the hearing on the motion.” (§ 682, subd. (b).) Neither
section 682 nor the identical provision in rule 5.776(a) contain any language limiting the
definition of “good cause.”
We disagree with the minor’s contention that good cause for continuing a petition
is limited to the grounds specified in rule 5.774(b) and (c), which we have set forth ante.
Section 700, which establishes procedures for the beginning of a hearing on wardship
proceedings and appointing counsel for the minor, requires in pertinent part: “The court
shall continue the hearing for not to exceed seven days, as necessary to make an
appointment of counsel, or to enable counsel to acquaint himself or herself with the case,
or to determine whether the parent or guardian or adult relative is unable to afford
counsel at his or her own expense, and shall continue the hearing as necessary to provide
reasonable opportunity for the minor and the parent or guardian or adult relative to
prepare for the hearing.” This is the statutory source for rule 5.774(b).
Section 701 is the statutory source for rule 5.774(c), governing the standard of
proof and the admissibility of evidence at a wardship hearing; it provides in pertinent
part: “When it appears that the minor has made an extrajudicial admission or confession
and denies the same at the hearing, the court may continue the hearing for not to exceed
seven days to enable the prosecuting attorney to subpoena witnesses to attend the hearing
to prove the allegations of the petition.”
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While sections 700 and 701 identify particular instances of good cause, each
speaking to a specific set of circumstances concerning the subject matter of that
particular statutory provision, they do not, either on their own or as applied through rule
5.774(b) and (c), limit the broader definition of good cause. Clearly, a juvenile court may
continue a jurisdiction hearing pursuant to section 682 and rule 5.776(a) for good cause--
the definition of which is not limited by the specific statutory provisions and their
individual illustrations of good cause described by 5.774(b) and (c). (See Maurice E,
supra, 132 Cal.App.4th at p. 481 [applying nearly identical predecessor to rule 5.776,
former rule 1486, and reaching the same conclusion].) The language and statutory
sources of rule 5.774(a), (b), and (c) make clear that the grounds for continuing a hearing
under (b) and (c) are not the sole sources of good cause for a continuance under rule
5.774(a). Neither the text nor the context of those provisions purports to limit the
definition of “good cause.” (See Maurice E., supra, at pp. 479-480.)
Good cause for a continuance to obtain a witness’s testimony requires the moving
party to show the exercise of due diligence to secure the witness’s attendance, that the
expected testimony is material and not cumulative, that the witness’s attendance can be
obtained within a reasonable time, and that the facts to which the witness would testify
could not otherwise be proven. (See People v. Howard (1992) 1 Cal.4th 1132, 1171.)
Here, the juvenile court continued the hearing to secure the appearance of the victim,
whose testimony was material, not cumulative, and constituted facts that could not
otherwise be proven. The People contacted the victim two court days after the first
hearing date was set to determine his availability for January 15 and 16, 2013. The
following day, the People learned that the victim was out of the country and would not
return until January 18, 2013, and could not testify until the following day.
Because the People established good cause for the continuance, the juvenile court
was within its discretion to continue the hearing. (See Maurice E., supra, 132
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Cal.App.4th at p. 481 [applying abuse of discretion standard].) Accordingly, the juvenile
court did not err when it declined to dismiss the petition pursuant to rule 5.774(d).
II
Penal Code section 654
The minor contends the juvenile court erred when it failed to stay the term for the
assault charge when calculating the maximum sentence at the disposition hearing. The
People concede error, and we agree with the parties.
A. The Law
Penal Code section 654 precludes imposition of multiple punishments for conduct
that violates more than one criminal statute but that constitutes an indivisible course of
conduct. (People v. Perez (1979) 23 Cal.3d 545, 551-552.) “Whether [Penal Code]
section 654 applies in a given case is a question of fact for the trial court, which is vested
with broad latitude in making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support them. [Citations.] We
review the trial court’s determination in the light most favorable to the respondent and
presume the existence of every fact the trial court could reasonably deduce from the
evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“[W]here multiple criminal acts are committed, a defendant can be separately
punished only for those that are independent violations committed in pursuit of different
criminal objectives. [Citation.] . . . [¶] . . . [¶] [W]hen a defendant is responsible for both
an assault and robbery, he can be punished for both crimes if the assault was not incident
to the robbery and was motivated by a separate criminal objective [citation], but if the
assault was committed in order to accomplish the robbery, then the defendant can be
punished for only one of the crimes. [Citations.]” (People v. Martinez (1984)
150 Cal.App.3d 579, 606, disapproved on other grounds in People v. Hayes (1990)
52 Cal.3d 577, 628, fn. 10.)
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B. Analysis
Here, there is no evidence the minor had any prior relationship with the victim or
any reason to assault him other than to rob him. The minor initiated the encounter by
asking the victim for his cell phone. When he declined, the minor and the others beat the
victim until they were able to take his cell phone and other property by force--that is, they
beat him so that they could rob him.
Because the assault charged in the December 21, 2012, petition was committed
solely to effectuate the charged robbery, the term for assault by means likely to produce
great bodily injury should be stayed pursuant to Penal Code section 654. The assault
charge was a subordinate term with a middle term of three years (Pen. Code, § 245, subd.
(a)(4)); thus it constituted one year of the minor’s seven-year 10-month maximum term.
We will modify his maximum term to six years 10 months.
DISPOSITION
The disposition order is modified to stay imposition of the term for the Penal Code
section 245, subdivision (a)(4) assault charged in the December 21, 2012, petition
pursuant to Penal Code section 654, for a maximum term of confinement of six years 10
months. As modified, the judgment is affirmed. The juvenile court is directed to amend
its disposition order accordingly and to provide the amended order to the relevant
authorities.
DUARTE , J.
We concur:
RAYE , P. J.
MURRAY , J.
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