In re Jerry S.
Filed 9/20/07 In re Jerry S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JERRY S., a Person Coming under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. JERRY S., Defendant and Appellant. | F051205 (Super. Ct. No. 01CEJ600888-6) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Commissioner.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
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On June 28, 2006,[1]a juvenile wardship petition (Welf. & Inst. Code, 602) was filed in Fresno County Superior Court case No. 01CEJ600888-5 (case No. 888-5), in which it was alleged that appellant Jerry S., a minor, committed battery (Pen. Code, 242).[2]In a detention hearing memo prepared June 28, it was alleged that in committing this offense, appellant violated probation granted in a previous wardship proceeding. On July 13, appellant admitted the violation of probation, and the court dismissed the June 28 wardship petition.
On July 26, a juvenile wardship petition was filed in Fresno County Superior Court case No. 01CEJ600888-6 (case No. 888-6), in which it was alleged appellant committed misdemeanor vandalism ( 594, subd. (a)).
On August 17, the court dismissed the July 26 petition, ordered appellant committed to the California Youth Authority;[3]declared appellants maximum term of physical confinement (Welf. & Inst. Code, 731, subd. (b)) to be six years; and awarded appellant 793 days of predisposition credits.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing.
FACTUAL BACKGROUND
Prior Wardship Proceedings
In April 2001, appellant admitted an allegation that he committed a misdemeanor violation of section 12020, subdivision (a)(4) (carrying a concealed dirk or dagger). The court adjudged appellant a ward of the court and placed him on informal probation.
In September 2001, appellant admitted an allegation that he violated his probation. In October 2001, the court placed appellant on formal probation.
In August 2002, appellant admitted an allegation that he committed a misdemeanor attempt to unlawfully take or drive a motor vehicle (Veh. Code, 10851, 664). Later that month, at the disposition hearing, the court continued appellant on probation.
In July 2003, the court found true an allegation that appellant committed second degree burglary ( 459, 460, subd. (b)). In August 2003, the court declared the offense to be a felony and continued appellant on probation.
In October 2004, appellant admitted allegations that he committed two misdemeanors: assault with a deadly weapon, viz. a knife ( 245, subd. (a)(1)) and battery ( 242). Later that month, at the disposition hearing, the court ordered appellant committed to the Elkhorn Correctional Facility boot camp program.
In October 2005, appellant admitted an allegation that he committed second degree robbery ( 211, 212.5, subd. (c)). In November 2005, appellant admitted an allegation that he committed the offense of receiving stolen property ( 496, subd. (a)). Later that month, at the disposition hearing covering both offenses, the court declared each offense to be a felony and again ordered appellant committed to the Elkhorn Correctional Facility boot camp program.
Violation of Probation - Case No. 888-5
While at boot camp, appellant struck another minor.
DISCUSSION
Following independent review of the record, we have determined as follows: In her report, the probation officer recommended 772 days of predisposition credits, reflecting several separate periods of custody in 2003, 2004, 2005 and 2006, up to and including July 27, the date on which the disposition hearing was originally scheduled. (See In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067 [a minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing, and when a juvenile court elects to aggregate a minors period of physical confinement on multiple petitions ..., the court must also aggregate the predisposition custody credits attributable to those multiple petitions].) The hearing was continued to August 17, and on that date the court awarded predisposition credits of 793 days, reflecting the originally recommended 772 days plus 21 days for the additional custody time. However, the originally recommended award of 772 days was incorrect. The custody periods that form the basis of that recommendation total 722 days, not 772 days. Accordingly, we will modify the judgment to reduce the award of credits to 743 days.[4]
We have concluded that with the exception of the issue discussed in the preceding paragraph, no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is modified to provide that appellant is awarded 743 days of predisposition credits. The juvenile court is directed to prepare an amended order of commitment to the DCRJJ and to send a certified copy of the amended commitment order to the DCRJJ. As modified, the judgment is affirmed.
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* Before Vartabedian, Acting P.J., Harris, J. and Cornell, J.
[1] Except as otherwise indicated, references to dates of events are to dates in 2006.
[2] Except as otherwise indicated, all further statutory references are to the Penal Code.
[3] Effective July 1, 2005, the California Youth Authority was renamed the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). (Gov. Code, 12838, subd. (a).)
[4] Pursuant to Government Code section 68081, we notified the parties of our intention to modify the judgment as set forth herein. Neither party responded to our invitation to submit supplemental briefing on this issue.
