In re S.T.

















Filed 3/15/13 In re S.T. CA1/4

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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opinion has not been certified for publication or ordered published for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




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In re S.T., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. S.T., Defendant and Appellant.	A135969 (Sonoma County Super. Ct. No. 36663J)

S.T.
(Minor) appeals a dispositional order
committing him to juvenile hall.
(Welf. & Inst. Code,href="#_ftn1" name="_ftnref1" title="">[1]
§ 602.) We shall modify the order
to remove a reference to “any other penal institution,” and to award Minor
predisposition custody credits. As so
modified, we shall affirm the order.

I. BACKGROUND

Minor
was originally declared a ward of the court after a petition was filed pursuant
to section 602 in September 2010, when he was 15 years old, alleging he had
defaced property with graffiti (Pen. Code, § 594, subd. (a)), associated with
a criminal street gang (Pen. Code, § 186.22), and possessed a billy club
(Pen. Code, former § 12020, subd. (a)(1), now Pen. Code,
§ 22210). Minor admitted the
allegations of the petition. Four
additional petitions were filed over the next 13 months; the sustained
allegations of those petitions included stealing a case of beer (Pen. Code,
§ 484, subd. (a)), grand theft (Pen. Code, § 487, subd. (c)), and
escaping from probation camp (§ 871, subd. (a)). Minor was placed on probation in the home of
his parents in November 2010. It appears
that in April 2011, after admitting the grand theft count, being reinstated on
home probation, and violating his probation by testing positive for cocaine,
Minor was placed in probation camp.href="#_ftn2"
name="_ftnref2" title="">[2] At the beginning of the time pertinent to the
issues in this appeal, Minor was in juvenile hall after escaping from probation
camp on October 15, 2011.

A
sixth petition was filed on October
28, 2011, alleging Minor committed href="http://www.mcmillanlaw.com/">battery on another minor. (Pen. Code, § 242.) The incident had occurred in juvenile hall,
as Minor awaited transfer back to probation camp. Minor admitted the allegation, and the
juvenile court sustained the petition and retained him as a ward of the court.

At
the dispositional hearing, the
probation officer recommended that Minor be returned to probation camp, and the
prosecutor argued that defendant had “had his chance” at probation camp and
should not be returned there. The
juvenile court imposed and suspended a term of 36 months and 20 days, and
ordered Minor recommitted to probation camp.
In doing so, the court noted that the probation camp had a “full house”
and that many people wanted to be placed there, and told Minor: “What that means is that if you mess up, you
don’t obey the rules at camp, you get into another problem at the hall, it’s
going to be very clear to me . . . that the punishment that will be imposed is
36 months and 20 days plus any additional time you may get if you get another
602 petition. So you have no margin for
error. Otherwise, you will spend until
you turn 19 in the hall, and on your 19th birthday they’ll send you to the
county jail to serve out the rest of your time.
So you can either try and make it at camp or spend your time locked
up. That will be up to you. But the judge will know, whether it’s me or
somebody else, that that time has been hanging over your head; and, with it
hanging over your head, you chose not to follow the rules; so there will be
only one punishment imposed, which is simply time. So you’re getting one last chance. And it truly is a last opportunity to
perform.” The court told Minor it had
written on his file, “Last opportunity to perform outside of cell.”

A
seventh juvenile wardship petition was filed in May 2012, alleging Minor had
carried a concealed dirk or dagger.
(Pen. Code, § 21310.) Minor
told the officer who arrested him that he was on a weekend pass from probation
camp. Minor admitted the allegation as a
misdemeanor. He told a probation officer
he was carrying the knife to protect himself from Norteño gang members. At disposition, the juvenile court noted that
Minor had asked for “one final chance” at probation camp, and said, “[t]he
problem, [Minor], is we gave you a final chance. In fact, I showed you this back in
November. It said, “ ‘Last
opportunity.’ ” And we talked about
what last opportunity means. The final
chance has come and gone. [¶] I
intend to impose 270 days to 1,006 days.
That’s the statutory maximum. If
you do what you’re supposed to do, shortly after your 18th birthday you’ll be released from custody and all proceedings
will be dismissed.” The court retained
Minor as a ward, vacated the commitment to probation camp, and ordered him to
serve, “in addition to the time that he has previously served, 270 to 1,006
days in juvenile hall or any other penal institution.”

II. DISCUSSION

A.
Commitment to Juvenile Hall

Minor
contends the juvenile court abused its discretion in committing him to juvenile
hall for 270 to 1,006 days. He argues
juvenile hall is appropriate only for short-term placement, and that a long
period of confinement in juvenile hall is not authorized by the juvenile law.

Section
202, subdivision (a), provides that the purpose of the juvenile court law is
“to provide for the protection and safety of the public and each minor under
the jurisdiction of the juvenile court and to preserve and strengthen the
minor’s family ties whenever possible, removing the minor from the custody of
his or her parents only when necessary for his or her welfare or for the safety
and protection of the public.” For
purposes of the juvenile court law, “ ‘punishment’ means the imposition of
sanctions. It does not include
retribution . . . .” (§ 202,
subd. (e).) Permissible sanctions
include payment of a fine, rendering of compulsory service, “[l]imitations on
the minor’s liberty imposed as a condition of probation or parole,” >“[c]>ommitment of the minor to a local detention
or treatment facility, such as a juvenile hall, camp, or ranch,” and
“[c]ommitment of the minor to the Division of Juvenile Facilities, Department
of Corrections and Rehabilitation.”
(§ 202, subd. (e)(1)-(5), italics added.)href="#_ftn3" name="_ftnref3" title="">[3] Our Supreme Court has stated that “[t]he
statutory scheme governing juvenile delinquency is designed to give the court
‘maximum flexibility to craft suitable orders aimed at rehabilitating the
particular ward before it.’ [Citation.] Flexibility is the hallmark of juvenile court
law, . . . [and] the juvenile court has long enjoyed great discretion
in the disposition of juvenile matters . . . .” (In re
Greg F. (2012) 55 Cal.4th 393, 411.)

We
see neither an abuse of that discretion nor an unauthorized disposition
here. Minor continued to violate the law
both after being placed on probation in his home and after being placed in
probation camp. A community-based
program had refused to accept him. He
had been warned that he would be placed in juvenile hall if he did not perform
satisfactorily at probation camp. As
explained in In re Ronny P.
(2004) 117 Cal.App.4th 1204, 1207, a juvenile court may “order a juvenile
confined to juvenile hall for a period of time as a condition of
probation. [Citations.] The purpose of such a confinement order is to
impress upon the juvenile the seriousness of the misconduct, without the
imposition of a more serious commitment.
[Citation.] The confinement order
informs the juvenile that continued misconduct will lead to even more serious
consequences and thus encourages rehabilitation.”href="#_ftn4" name="_ftnref4" title="">[4] Bearing in mind the juvenile court’s broad
flexibility to craft orders aimed at rehabilitating a ward (>In re Greg F., supra, 55 Cal.4th at p. 411), the juvenile court could properly
order Minor to serve his term in juvenile hall in the circumstances of this
case.

Minor
argues, however, that juvenile hall is intended only for short-term housing,
not for lengthy post-disposition confinement.
He points out that under the governing statutes, each county is required
to have a juvenile hall, which is described as “a suitable house or place for
the detention of wards and dependent children of the juvenile court and of
persons alleged to come within the jurisdiction of the juvenile court,”
(§ 850) and that a juvenile hall “shall not be deemed to be, nor be
treated as, a penal institution. It
shall be a safe and supportive homelike environment.” (§ 851.)
Moreover, Minor points to a regulation that provides: “ ‘Juvenile hall’ means a county facility
designed for the reception and temporary care of minors detained in accordance
with the provisions of this subchapter and the juvenile court law.” (Cal. Code Regs.,
tit. 15, § 1302.) These
authorities, Minor argues, show that juvenile hall is not appropriate for
detention of minors after disposition.
Minor also agues that In re
Ricardo M. (1975) 52 Cal.App.3d
744, which upheld a requirement that a minor spend between five and 20 days in
juvenile hall as a condition of probation, shows that the juvenile court may
order only brief commitments to juvenile hall.
None of these authorities persuades us that a juvenile court does not
have discretion to order a longer juvenile hall commitment, or that such an
order was improper here.

Nor
do we find In re Trevor W. (2001) 88
Cal.App.4th 833, 836-839 apposite. The
appellate court there considered whether the juvenile court had authority to
order a juvenile hall commitment of 210 days for a minor whom it had placed on
probation without adjudging him a
ward of the court. (Id. at p. 835.) Relying on section
725, subdivision (a), which authorizes a juvenile court to place a minor on
probation for no more than six months without adjudging the minor a ward, the
court concluded that the probation condition was unauthorized. First, the court explained, continuous
detention deprived the parents of physical custody, and such a deprivation was
improper unless the minor had been adjudged a ward. (Trevor
W., supra, at p. 838.) Second, even assuming juvenile hall time was
proper where a minor had not been adjudged a ward, the 210-day term exceeded
the six-month period of probation authorized for such minors. (Id.
at p. 839.) Here, of course, Minor >has been adjudged a ward.

Minor
also contends the order was inappropriately punitive and contravened the
rehabilitative purposes of the juvenile justice system. We disagree.
As noted in In re Ricardo M.,
a juvenile hall commitment may “seek[] to avoid the unkind leniency which all
too often leads the juvenile to further and more aggravated violations of law .
. . .” (In re Ricardo M., supra,
52 Cal.App.3d at p. 749.) The juvenile
court could reasonably conclude the order would further Minor’s rehabilitation
by impressing upon him the seriousness of his repeated violations of the law. (See In
re Ronny P., supra, 117 Cal.App.4th
at p. 1207.)href="#_ftn5" name="_ftnref5"
title="">[5]

In
his reply brief, Minor also argues he was denied equal protection because the
juvenile court’s order did not provide for periodic reviews. “ ‘Points raised for the first time in a
reply brief will not be considered.’ ”
(Moran v. Endres (2006)
135 Cal.App.4th 952, 956.)

B.
Commitment to “any other penal institution”

The
juvenile court ordered Minor committed to “juvenile hall or any other penal
institution.” Minor contends the
juvenile court lacked authority to commit him to a “ ‘penal
institution.’ ” As Minor points
out, the juvenile law limits the commitment alternatives available to the
juvenile court, and the court lacks authority to commit a juvenile to an adult
facility. (In re Jose H. (2000) 77
Cal.App.4th 1090, 1098-1099; In re Ramon
M. (2009) 178 Cal.App.4th 665, 674.)
The court’s authority to make custodial dispositions is limited to the
dispositions enumerated in section 202.
(In re Ramon at
p. 274.) Those dispositions include
commitment to a local detention or treatment facility, such as a juvenile hall,
camp, or ranch, and commitment to the Division of Juvenile Facilities; they do
not include “other penal institution[s].”href="#_ftn6" name="_ftnref6" title="">[6] (§ 202, subd. (e)(4) & (5).) Respondent concedes this point. We agree, and shall order the reference to
“any other penal institution” stricken.

C.
Credits Prior to Dispositional Hearing

Minor
contends the juvenile court failed to calculate and award credit for the 47
days he spent in juvenile hall before disposition. “[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.]”
(In re Emilio C. (2004) 116
Cal.App.4th 1058, 1067.)

At
disposition, the juvenile court ordered, “[Minor] will serve, in addition to
the time he has previously served, 270 to 1,066 days in juvenile hall or any
other penal institution.” The court did
not mention credit for the time Minor served while awaiting the disposition
hearing. Respondent argues that Minor
was in fact awarded credit for this time.
As evidence, the respondent points to the Probation Officer’s report,
which stated that Minor’s credits in the “[i]nstant [m]atter” were 47 days, and
an attached “worksheet for determining maximum term of confinement,” which
includes 47 days credit for time served between the filing of the seventh
petition and the June 27, 2012 dispositional hearing.

Despite
these references in the probation report, we are not aware of any court order
granting the credit. We shall therefore
order the dispositional order modified to reflect 47 days credit for the time
Minor spent in custody before the June 27, 2012 dispositional hearing.

III. DISPOSITION

The
order appealed from is ordered modified to strike the reference to “any other
penal institution,” and to award Minor 47 days of predisposition custody
credit. As so modified, the order is
affirmed.













_________________________

RIVERA,
J.





We concur:





_________________________

RUVOLO, P. J.





_________________________

HUMES, J.