In re N.B.
Filed 5/21/13 In re N.B. CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
In re N.B.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
N.B.,
Defendant and Appellant.
A136160
(Alameda
County
Super. Ct.
No. SJ12190321)
I.
Introduction
Appellant
N.B., a minor, appeals from a dispositional order entered after he was found to
come within the provisions of Welfare and Institutions Code section 602. He contends on appeal that the juvenile court
erred in three, separate ways in its jurisdictional finding, and in the
disposition of the case: (1) finding true that appellant committed both
(2) imposing two conditions of probation requiring that appellant “[b]e of
good citizenship and good conduct,†and that he “be of good behavior and
perform well†at school and work; and (3) calculating his predisposition
custody credits at 52 days when the total should have been 53 days. We find all three of these claims have merit.
The
Attorney General concedes the three errors, contending, however, that appellant
is entitled to 70 days of conduct credits, not 53 days. Therefore, we reverse the true finding on the
allegation that appellant committed the crime of receiving stolen property, and
order it stricken. We also strike the
two challenged probation conditions, and order that the dispositional order be
modified to reflect an award of 70 days of custody credit.
II.
Procedural and Factual Backgrounds
A
petition was filed by the Alameda County District Attorney seeking to have
appellant adjudged a ward of the court (Welf. & Inst. Code, § 602,
subd. (a)), alleging one count of second degree robbery (Pen. Code,
§ 211), and one count of receiving stolen property (Pen. Code,
§ 496). Both counts are based on a
single incident involving the taking
of an iPhone from another person on May
26, 2012.
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A
contested jurisdictional hearing was
held on the petition on June 21, 25, and July 2, at the conclusion of
which the allegations that appellant had committed the crimes alleged in the
petition under sections 211 and 496 were found true. The matter was continued to July 17 for a
dispositional hearing.
The
undisputed facts at the jurisdictional hearing showed that on May 26, appellant
and another individual took an iPhone from another minor who was riding on a
BART train near Pittsburg. While it is unclear who actually grabbed the
phone, appellant or his partner, appellant was later observed trying to conceal
the phone while still on the train. The
phone was later recovered and returned to the victim.
A
dispositional hearing was held on July 17.
The court found that the minor’s best
interests warranted removal from his mother’s custody, despite reasonable
efforts having been made to eliminate the need for such removal. The court ordered appellant into the care and
custody of the probation department for placement in a suitable foster home or
institution. In addition to those
conditions of probation announced by the judge during the hearing, the court
imposed the “standard conditions†of probation issued by the county probation
department. Thereafter, the minute order
of the dispositional hearing included the requirements that appellant: (1) “Be of good citizenship and good conduct;†and
(2) “Attend classes or job on time and regularly; be of good behavior and
perform well.†Appellant was also
awarded 52 days of credit for time in custody.
III.
Discussion
As
noted above, appellant contends that the juvenile court erred in three,
separate ways in its jurisdictional findings and in the disposition of the
case: (1) the court found true both that appellant committed second degree
robbery and received stolen property of the same property, specifically, the
victim’s iPhone; (2) it imposed two unconstitutionally vague conditions of
probation requiring that appellant “[b]e of good citizenship and good conduct,â€
and that he “be of good behavior and perform well†at school and work; and
(3) the predisposition custody credits of 52 days awarded by the court
should have been 53 days.
Also
as noted above, the Attorney General has conceded all three errors. In fact, respondent concedes that appellant
is entitled to 70 days custody credit; more credit than the 53 days sought by
appellant.
As
to the first issue, we agree that appellant could not have been found to have
committed both a robbery and receiving stolen property of the same item; the
victim’s iPhone. (People v. Ortega (1998) 19 Cal.4th 686, 694, overruled on other
grounds in People v. Reed (2006) 38
Cal.4th 1224, 1228-1229; People v.
Jaramillo (1976) 16 Cal.3d 752, 756.)
This limitation likewise has been applied to juvenile court
proceedings. (In re Kali D. (1995) 37 Cal.App.4th 381, 385, disapproved on other
grounds in People v. Allen (1999) 21
Cal.4th 846, 861, fn. 16.)
Therefore, we will order the true finding as to the receiving stolen
property reversed, and further order it stricken from the dispositional order.
Because
we are reversing one of the true findings, we must also order that the juvenile
court amend its dispositional order reducing the maximum period of confinement
for the robbery from the current aggregate of five years eight months to five
years. As to the two challenged
conditions of probation, we shall order them stricken. (People
v. Zachery (2007) 147 Cal.App.4th 380, 388.)
Lastly,
the Attorney General concedes that appellant was entitled to 70 days of custody
credit instead of the 52 days awarded as part of the dispositional order. In light of this commendable concession, we
will order that the dispositional order be modified by the juvenile court to
reflect the correct number of credit days.
IV.
Disposition
We
hereby order the following:
1. The true finding on the receiving stolen
property allegation (Pen. Code, § 496) is reversed, and it shall be
stricken from the jurisdictional and dispositional orders of the juvenile
court. In light of this reversal, the
juvenile court is directed to modify its orders reflecting that appellant’s
maximum period of confinement is five years.
2. The probation conditions requiring appellant
to (1) “Be of good citizenship and good conduct;†and (2) “Attend
classes or job on time and regularly; be of good behavior and perform well,â€
are ordered to be stricken from the minutes of the dispositional hearing.
3. The dispositional order is ordered modified
to reflect a total of 70 days of custody credit.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
2012, unless otherwise indicated.
court’s true findings are not challenged on appeal, and are not directly
relevant to the errors raised on appeal, we include only a brief description of
the event underlying this case.
