In re Rolando M.
Filed 1/27/14 In re Rolando M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ROLANDO M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROLANDO M.,
Defendant and Appellant.
F067185
(Super. Ct. No. JJD065325)
THE COURT
APPEAL
from a judgment of the Superior Court of
Tulare County. Jennifer Conn Shirk,
Judge.
Carol
A. Koenig, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office
of the State Attorney General,
Sacramento, California, for Plaintiff and Respondent.
The court continued appellant, Rolando
M., as a ward of the court after appellant admitted allegations charging him
with violating his probation. Following
independent review of the record pursuant to People v. Wende (1979) 25
Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On
September 20, 2011, appellant and another male juvenile broke into a home in
Shafter, ransacked the interior, and took a Nintendo game console.
On
January 26, 2012, the Kern County District Attorney
filed a petition charging appellant with residential burglary (Pen. Code, §
460, subd. (a)) and misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(A)).
On
February 29, 2012, after appellant admitted the residential burglary charge,
the vandalism charge was dismissed, the matter was transferred to Tulare County
for disposition, and appellant was released to the custody of his mother. That evening, appellant and several other
juveniles took a toy vending machine from a business in Earlimart. Appellant was arrested on March 1, 2012.
On
March 5, 2012, the Tulare County District Attorney
filed a petition charging appellant with grand theft (Pen. Code, § 487, subd.
(a)).
On
April 12, 2012, appellant admitted the grand theft charge.
On
April 26, 2012, the court placed appellant on probation and committed him to
the Tulare County Youth Correctional Center Unit for 365 days.
On
May 2, 2012, the court set appellant’s maximum term of confinement at seven years
eight months.
On
January 4, 2013, appellant completed the residential phases of the Long Term
Program and was released to aftercare on a GPS monitor. Appellant, however, did not enroll in or
attend North Kern Community School after his release, as he was required to do
by his conditions of probation.
On
January 15, 2013, appellant’s mother reported that appellant absconded from her
residence with a known gang member and his whereabouts were unknown.
When
detained on January 29, 2013, appellant was wearing a belt with an “N†on the
buckle, which is a type of buckle commonly worn by Norteño gang members. Additionally, appellant admitted that he
consumed alcohol when he
was not staying at his mother’s house.
On
March 15, 2013, the probation officer filed a petition alleging that appellant
violated his probation by absconding from his parent’s residence on January 12,
2013, failing to enroll in school and attend daily, associating with known gang
members, possessing gang indicia, and consuming alcohol.
On
March 25, 2013, appellant admitted violating his probation.
On
April 15, 2013, the court set appellant’s maximum term of confinement at eight
years two months and committed him to the Tulare County Youth Correctional
Center Unit for 240 to 365 days.
Appellant’s
appellate counsel has filed a brief which summarizes the facts, with citations
to the record, raises no issues, and asks this court to independently review
the record. (People v. Wende, supra, 25
Cal.3d 436.) Appellant has not responded
to this court’s invitation to submit additional briefing. However, our review of the record disclosed
that the court erred in its award of predisposition custody credit.
According to
appellant’s probation report, appellant was in predisposition custody between
March 4, 2011, and April 9, 2013, the original date of appellant’s disposition
hearing, a total of 448 days as follows:
3/04/2011
through 3/25/2011 - 26 days
3/25/2011
through 3/29/2011 - 5 days
4/13/2011 through 4/22/11 - 10
days
6/07/2011 through 6/08/2011 - 2 days
3/01/2012 through 1/04/2013 - 309
days
1/04/2013 through 1/29/2013 - 25 days
1/29/2013 through 4/09/2013 - 71 days
Based on the
probation department’s calculations, at appellant’s disposition hearing on
April 15, 2013, the court added six additional days and awarded appellant a
total of 454 days of predisposition custody credit. However, the department’s calculation of
predisposition credit is wrong for the following reasons.
The probation
department gave appellant predisposition credit of 31 days for his time in
custody from March 4, 2011, through March 29, 2011, even though he was only in
custody 26 days during that period of time.
Further, from March 1, 2012, through January 4, 2013, appellant was in
custody 310 days,
name="_ftnref2" title="">[1] not 309 days. Additionally, the probation department gave
appellant credit for 25 days of predisposition credit for January 4, 2013,
through January 29, 2013. However,
appellant was released on the electronic monitor on January 4, 2013, and he
absconded from his home and remained at large until he was arrested on January
29, 2013. Appellant was not entitled to
predisposition custody credit for the time he served on the electronic monitor
(In re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079-1080) or for the time that he was out of custody at large (
days of predisposition credit for January 5, 2013, through January 28, 2013,
because he was not in custody on those days.
Further, from January 29, 2013, through April 15, 2013, appellant was in
custody 77 days.
name="_ftnref3" title="">[2] Thus, including the 10 days
appellant was in custody from April 13, 2011, through April 22, 2011, and the 2
days he was in custody from June 7, 2011, through June 8, 2011,
total of 425 days of predisposition custody credit.
Further,
following an independent review of the record we find that with the exception
of the credit issues discussed above, no reasonably arguable factual or legal
issues exist.
DISPOSITION
Appellant’s
award of predisposition credit is reduced from 454 days to 425 days and the
trial court is directed to correct its paperwork accordingly. As modified, the judgment is affirmed.
Gomes, Acting P.J., Kane, J., and Poochigian, J.
different months in 2012 (March, May, July, August, October, and December) and
30 days during each of four months in 2012 (April, June, September, and
November) and four days from January 1, 2013, through January 4, 2013, for a
total of 310 days (6 x 31 days = 186 days; 4 x 30 days = 120 days; 186 days +
120 days + 4 days = 310 days).
