In re Anthony S.
Filed 4/23/13 In re Anthony S. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
In re
Anthony S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
Anthony S.,
Defendant and Appellant.
A135967
(Sonoma
County
Super. Ct. No. 35556-J)
After participating in a
gang-related attack and being found in possession of marijuana, defendant was
re-adjudged a ward of the juvenile court.
Various probation violations followed, and the court authorized, prior
to his 18th birthday, the prospect of incarceration in adult jail. On appeal, defendant challenges the adult
jail authorization and the length of his commitment. He also claims the court failed to correctly
calculate his maximum term of confinement and his
of the order relating to an adult jail commitment. We also modify it to correct defendant’s
presentence custody credits, and affirm the judgment as modified.
FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
On June 3, 2010, defendant and group of juveniles surrounded,
threatened, and pushed a couple who had objected to the teenagers’ loud,
drunken behavior at their apartment complex.
The woman who was threatened was clearly pregnant. The juveniles yelled “Norte†several times. All seven suspects were arrested and detained
at juvenile hall.
On June 4, 2010, the district attorney filed a
Institutions Code section 602,
name="_ftnref1" title="">[1] alleging that
defendant, then age 15 and previously a ward of the juvenile court, was
involved in a public fight. The offense
was charged as a felony due to a gang enhancement. (Pen. Code, §§ 415, subd. (1), 186.22, subd.
(d); Count 1.) The petition also alleges
defendant’s participation in a criminal
street gang (§ 186.22, subd. (a); Count 2), and that he had been in
possession of not more than 28.5 grams of marijuana (Health & Saf. Code, §
11357, subd. (b); Count 3).
June 8, 2010, defendant admitted Count 1 in exchange for dismissal
of Counts 2 and 3 and reinstatement of probation. The plea waiver form states that the
potential sentence on the admitted count was three years. Defendant’s initials are written next to that
calculation.
On June 23, 2010, the juvenile court adjudged defendant a ward and
found his maximum term of confinement (MTC) to be 36 months. At that time, he was advised that 35 months
and 9 days’ confinement time was still available.
On September 17, 2010, a notice of probation violation was filed alleging
that defendant had possessed gang
paraphernalia, tested positive for illicit drugs, admitted to consuming
alcohol, and failed to complete any community service hours.
On September 20, 2010, defendant admitted violating probation. He was retained a ward of the court, and
ordered placed in a residential treatment
program.
On September 30, 2010, defendant was placed at the Wilderness Recovery
Center (WRC).
On February 7, 2011, a notice of probation violation was filed after
defendant was terminated from WRC for ongoing noncompliance, gang posturing,
and vandalism of group home property.
The petition was dismissed and he was again ordered to suitable
placement.
On February 14, 2011, defendant was placed at Mary’s Help Group Home.
On April 21, 2011, another notice of probation violation was filed
after defendant absconded while being transported to juvenile hall due to behavioral
issues in the group home. He was
arrested on April 27, 2011.
On April 29, 2011, the petition was dismissed and defendant was again
ordered into placement.
On May 5, 2011, defendant was placed at Our Common Ground. During his time there, he graduated from high
school and was successfully discharged from the program on January 5, 2012.
On January 31, 2012, a notice of probation violation was filed alleging
defendant had left home without permission and failed to contact probation.
On February 2, 2012, defendant admitted violating probation. He was released from juvenile hall to
community detention on February 21, 2012.
On March 21, 2012, a notice of probation violation alleged that
defendant tested positive for marijuana.
The following day, he admitted the violation and was continued a ward
and ordered to serve 30 to 35 days in juvenile hall. He was released on April 20, 2012.
On
May 7, 2012, a notice of probation violation was filed alleging that defendant,
then age 17, left home without permission, tested positive for marijuana,
possessed and consumed alcohol, and failed to attend his
On
June 5, 2012, defendant, who was wearing gang attire and was with two
acknowledged Norteño associates, was detained while sitting on a bench covered
with black-marker gang tags in a park known to be frequented by Norteño gang
members. Appellant was carrying a red
folding knife, a marijuana pipe, and a black marking pen. Although he gave a false name to the police,
they recognized him from prior arrests.
On June 7, 2012, defendant admitted violating probation as alleged in
the May 7, 2012 notice of violation.
The warrant was recalled and he was detained in juvenile hall pending
disposition.
A
supplemental disposition report filed by the probation department on June 21, 2012, recommended defendant serve a juvenile hall
commitment of 150 to 180 days, with 17 days’ credit for time served. An attached worksheet notes 31 months and 23
days remained of his MTC.
At
the dispositional hearing on June 21, 2012, the juvenile court pronounced its
order as follows: “But the Court is going to order that the minor be retained a
ward of the court; that, in addition to the time that he has served, that he
serve an additional 365 to 841 days.
[¶] So if you mess up in the hall
or MADF [Main Adult Detention
Facility], if you get detained there, they can keep you in for a long, long
time. That will begin forthwith. All other orders not in conflict will remain
in full force and effect. And all
juvenile court proceedings will be dismissed upon his completion of time in
juvenile hall or the Main Adult Detention Facility.†The dispositional order in the record on appeal
states: “JUVENILE HALL TIME/JAIL TIME: In addition to previous time Minor shall
be committed to Juvenile Hall for 365 to 841 days. . . . Time to be served
forthwith. . . . Other:
MADF.†(Italics added.) This appeal followed.
DISCUSSION
Typically,
a juvenile court’s dispositional order is reviewed for an abuse of
discretion. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) An abuse of discretion exists when a lower
court’s actions exceed or transgress the limitations of the applicable
law. (See Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 862.)
Including MADF
It is
settled that a juvenile court cannot order even 18-year-old wards directly to
county jail. (In re Ramon M. (2009) 178 Cal.App.4th 665, 674; see § 202, subd.
(e).)
court, upon the recommendation of the
probation officer, transfer the ward to the custody of the sheriff. (§ 208.5; In
re Charles G. (2004) 115 Cal.App.4th 608, 618–619 (Charles G.).)
name="_ftnref3" title="">[3] Here, defendant was 17 years old at the time
of disposition. He turned 18 in October
2012, and will turn 19 in October 2013.
He will therefore turn 19 eleven months before the maximum term of 841
days expires. We agree with defendant
that the dispositional order, as worded, leaves open the possibility that the
minor could be detained at county jail during his wardship, which is not
authorized by statute under the circumstances of this case. (See In
re Kenny A. (2000) 79 Cal.App.4th 1, 6 [dispositional order committing an
18-year-old to county jail is unauthorized by statute].) Accordingly, the order constitutes an abuse
of discretion.
To
correct the dispositional order, defendant asserts that the entire phrase, “any
penal institution including MADFâ€
must be stricken. (Italics added.) The People note that the phrase “any penal
institution†appears on the written dispositional order in the record, but was
not part of the juvenile court’s oral dispositional order. For that reason, the People concede the
phrase “any penal institution†may be stricken from the written dispositional
order, an action that this court has the authority to do under our inherent
power. (See Pen. Code, § 1260.) The People, however, also contend that the
written reference to “any penal institution†is not an unauthorized sentence,
relying on Charles G., supra, 115
Cal.App.4th 608, 612. The contention
lacks merit.
In
section 602 ward at age 15. (115
Cal.App.4th 608, 612.) When he was 20
years old and still on probation, he admitted a probation violation after
testing positive for drugs. The
appellate court found his commitment to an adult facility was permissible. (Ibid.) Unlike the defendant in Charles G., however, in the instant case defendant violated
probation while he was still a minor. Juvenile wards may be housed in
juvenile hall until they are 19. (§
208.5, subd. (a).) As the appellate
court stated in In re Kenny A.,
“section 208.5 does permit housing a ward in county jail under certain
circumstances, but it does not allow the juvenile court to commit an
18-year-old to county jail as part of its disposition order. Instead, the statute permits an 18-year-old ward
to remain in a county institution for juveniles until age 19. The statute permits even a 19-year-old ward
to remain in a juvenile facility if the court so orders.†(In re
Kenny A., supra, 79 Cal.App.4th 1, 6.)
We will thus order the entire phrase “any penal institution including
MADF†stricken from the juvenile court’s dispositional order.
The
juvenile court ordered defendant to serve 365 to 841 days (12 to 28 months).
The dispositional order also provides for no early release
and no good time credit. Defendant
contends the juvenile court abused its discretion when it imposed such a
lengthy sentence.
A
juvenile court has substantial discretion in crafting dispositions within the
statutory authorization provided in section 202. (See In
re Eddie M. (2003) 31 Cal.4th 480, 507.)
Defendant admits “No published authority addresses a lengthy juvenile
hall commitment as a valid order of wardship probation.†We have summarized his extensive history with
the juvenile justice system. While he
achieved some success at Our Common Ground, including graduating from high
school, he continued to violate his probation after he left that program. Thus, it is understandable that the juvenile
court felt it had no other option than to order him to serve a lengthy juvenile
hall commitment. We therefore conclude
the court did not commit an abuse of discretion in ordering him to serve a
minimum of 365 days in juvenile hall.
Defendant’s MTC
Defendant
claims the juvenile court erred in failing to calculate his MTC and failing to
apply credit for time spent in custody prior to disposition. As noted above, a worksheet attached to the
supplemental disposition report states that 31 months and 23 days remained of
defendant’s MTC. Defendant does not
contest this calculation, and the dispositional order does not exceed that
limit. Further, defendant at all times
during this wardship proceeding was aware that he was subject to a three-year
MTC.
The
People concede defendant is entitled to predisposition custody credit. We agree with defendant that he is entitled
to 17 days of credit.
DISPOSITION
The
judgment of wardship is modified to strike “any penal institution including
MADF†from the June 21, 2012 dispositional order. The order is also modified to reflect
defendant is entitled to 17 days of credit.
As so modified, the judgment of wardship is affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Margulies,
Acting P. J.
__________________________________
Banke,
J.
A135967
name="_ftn1" title="">[1] All further statutory references are to the Welfare
and Institutions Code except as otherwise indicated.
name="_ftn2" title="">[2] Sanctions permissible at disposition are: “(1)
Payment of a fine by the minor. [¶] (2)
Rendering of compulsory service without compensation performed for the benefit
of the community by the minor. [¶] (3)
Limitations on the minor’s liberty imposed as a condition of probation or
parole. [¶] (4) Commitment of the minor
to a local detention or treatment facility, such as a juvenile hall, camp, or
ranch. [¶] (5) Commitment of the minor to
the Division of Juvenile Facilities, Department of Corrections and Rehabilitation.†(§ 202, subd. (e).)
