Filed 7/11/14 In re S.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re S.L., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F068026
Plaintiff and Respondent, (Super. Ct. No. JJD066160)
v.
OPINION
S.L.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Ann Bergen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Kane, J. and Franson, J.
The court adjudged appellant, S.L., a ward of the court after it revoked appellant’s
grant of deferred entry of judgment (DEJ) (Welf. & Inst. Code, § 730)1 that encompassed
several petitions.
On appeal, appellant contends the court erred: (1) in setting a maximum term of
physical confinement (MTPC); and (2) in its award of predisposition custody credit. We
will strike the court’s orders setting appellant’s MTPC and awarding him predisposition
credit and affirm the judgment as modified.
FACTS
On September 8, 2011, appellant approached a male juvenile as he walked to
school in Visalia and called him a “scrap.” As the other male continued walking,
appellant pushed him and punched him in the back of the head. At that point, the other
male’s cousin drove up and took him to school.
On April 24, 2012, the Tulare County District Attorney filed a petition charging
appellant with felony battery (Pen. Code, § 242) and with committing this offense for the
benefit of a street gang (Pen. Code, § 186.22, subd. (d)).
On July 16, 2012, appellant admitted the allegations of the petition contingent on
the court granting him DEJ.
On August 9, 2012, at approximately 1:00 p.m. appellant was standing near the
entrance to a woman’s restroom at a park when a Tulare police officer saw him pass a
black object to a person inside the restroom. Upon seeing the officer, appellant attempted
to conceal himself behind a barrier before fleeing. Appellant ignored the officer’s
commands to stop and ran into a neighborhood where he eventually surrendered when he
encountered a canine unit. A .40-caliber Glock handgun with a magazine containing
eight rounds was found in the sink of the women’s restroom.
1 All further statutory references are to the Welfare and Institutions Code unless
stated otherwise.
2.
On August 13, 2012, the court granted appellant DEJ. Also, on that date, the
district attorney filed a second petition charging appellant with resisting arrest.
On August 14, 2012, the court granted appellant DEJ as to the second petition also
and transferred the case to Ventura County where the minor was then residing.
On September 7, 2012, appellant was found in possession of a concealed knife.
(Pen. Code, § 21310.)
On November 2, 2012, the Ventura County District Attorney filed a petition
charging appellant with felony possession of a concealed dirk or dagger.
On December 5, 2012, appellant admitted the possession of a dirk or dagger
offense after it was reduced to a misdemeanor, and the court continued appellant on DEJ
on all three petitions.
On July 18, 2013, the Ventura County District Attorney filed a review report of
probation officer recommending the court revoke appellant’s grant of DEJ.
On August 9, 2013, the court revoked appellant’s grant of DEJ and declared him a
ward of the court. The court also set appellant’s MTPC at three years eight months,
awarded him predisposition actual custody credit of 25 days, and placed him in his
mother’s custody under the supervision of the probation officer on certain terms and
conditions.
DISCUSSION
Appellant’s Maximum Term of Confinement
Section 726 deals with “the maximum term of confinement in juvenile wardship
cases generally.” (In re Sean W. (2005) 127 Cal.App.4th 1177, 1187.) Subdivision (c) of
section 726 (section 726(c)) “requires the juvenile court to specify that the minor may not
be confined for a period in excess of the maximum term of imprisonment which could be
imposed on an adult convicted of the offense that brought the minor under the jurisdiction
of the juvenile court. By its express terms, however, section 726(c) applies only ‘[i]f the
minor is removed from the physical custody of his or her parent or guardian .…’” (In re
3.
Ali A. (2006) 139 Cal.App.4th 569, 573.) Where, as here, a minor is not removed from
the physical custody of his parents or guardian, section 726(c) “does not apply, … the
juvenile court [is] not required by [section 726(c)] to include a maximum term of
confinement in its dispositional order,” and the setting of an MTPC “is of no legal
effect.” (In re Ali A., supra, 139 Cal.App.4th at pp. 573, 574.) Accordingly, as the
parties agree, the juvenile court erred when it set an MTPC of three years eight months
for appellant. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
Appellant contends the error requires the striking of the MTPC. Respondent
concedes and we agree. We believe appellant is entitled to a dispositional order free of
legally ineffective and potentially confusing directives, and that the practice of
improperly declaring an MTPC should be discouraged. (In re Matthew A., supra, 165
Cal.App.4th at p. 541.) Therefore, we will strike the MTPC. (Ibid.)
Appellant’s Predisposition Credit
Appellant contends the court imposed an unauthorized sentence at the August 9,
2013, disposition hearing by awarding him only 25 days of predisposition credit because
he was entitled to 30 days of such credit. Appellant further contends he is entitled to the
five additional days or, pursuant to Penal Code section 2900.5, monetary credit against
qualifying fines and assessments. Respondent concedes appellant spent an additional five
days in predisposition custody. However, according to respondent, because the setting of
appellant’s MTPC has no effect, its statement concerning presentence custody credit is of
little effect. We agree with respondent and will strike the court’s award of predisposition
credit.
“‘[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. [Citations.]’ [Citation.]” (In re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079.)
Courts have held, however, that a minor “‘is entitled to credit against subsequent physical
4.
confinement only for earlier physical confinement.’” (Ibid., quoting In re Randy J. (1994)
22 Cal.App.4th 1497, 1505.)
Appellant and respondent both agree that appellant was in custody from July 18,
2013, through July 23, 2013, and that the court did not include five of those days in its
award of predisposition credit. However, it was unnecessary to calculate appellant’s
predisposition custody credit because the court did not commit appellant to a secure
placement and was, thus, not required to set his MTPC. Additionally, the court will be
able to recalculate appellant’s entitlement to this credit if, and when, it ever commits
appellant to a secure placement. Accordingly, we will strike the court’s award of
predisposition credit in its entirety.
Further, appellant’s claim that he is entitled to monetary credit for these additional
five days is unpersuasive because he relies on Penal Code section 2900.5, which applies
to adult criminal proceedings, but he does not cite any authority which holds that this
section is also applicable to juvenile proceedings. In any event, Penal Code section
2900.5 provides that “[i]n any case where the court has imposed both a prison or jail term
of imprisonment and a fine, any days to be credited to the defendant shall first be applied
to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be
applied to the fine, including, but not limited to, base fines, on a proportional basis.”
(Italics added.) In view of the possibility that appellant may in the future be placed in a
secure placement, it would be premature to give him monetary credit for the five days at
issue. (Cf. People McGarry (2002) 96 Cal.App.4th 644, 646-647 [defendant who had
served the maximum term of six months for a battery conviction was entitled pursuant to
Penal Code section 2900.5 to monetary credit against fines and fees imposed for days
served in excess of six-month term].)
5.
DISPOSITION
The court’s orders awarding appellant 25 days of predisposition credit and setting
appellant’s maximum term of confinement are stricken. As modified, the judgment is
affirmed.
6.