In re J.R.
Filed 7/27/09 In re J.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.R., a Person Coming Under The Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. J.R., Defendant and Appellant. | F056470 (Super. Ct. No. 05CEJ601076) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Commissioner.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
FACTS AND PROCEEDINGS
On October 25, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, J.R., committed a felony by committing a lewd and lascivious act on a child under age 14 (Pen. Code, 288, subd. (a)).[1] After being advised of the consequences of his plea and waiving his rights, appellant admitted the offense on March 7, 2007.[2] On April 17, 2007, the juvenile court placed appellant on deferred entry of judgment.[3]
On December 17, 2007, a new petition was filed alleging that appellant made a false report to a peace officer, a misdemeanor (Pen. Code, 148.5, subd. (a), count one), drove a vehicle without a valid drivers license, a misdemeanor (Veh. Code, 12500, subd. (a), count two), and misdemeanor possession of less than 28.5 grams of marijuana (Health & Saf. Code, 11357, subd. (b), count three). On January 7, 2008, appellant turned 18.
On March 24, 2008, the probation office sought a warrant for appellants arrest for failing to complete programs for community service and sex offender treatment. The juvenile court issued a warrant for appellants arrest.
On April 17, 2008, while the arrest warrant was still outstanding, the juvenile court terminated appellants deferred entry of judgment. On August 19, 2008, appellant was transported to Fresno County Jail. On September 12, 2008, the parties agreed appellant would admit count two of the misdemeanor petition, driving without a license, and the other two allegations would be dismissed.
The juvenile court advised appellant of his rights, which appellant acknowledged and waived, and explained the possible consequences of appellants plea. These included being placed on probation, release to his parents, placement in a group or foster home, and because of the prior felony adjudication, placement in the Division of Juvenile Facilities (DJF).[4] Appellant admitted count two.
The probation officer recommended appellant's commitment to DJF for eight years two months. On October 14, 2008, the juvenile court found appellants victim was particularly vulnerable, appellant took advantage of a position of trust, appellant was on probation when the offense was committed, and appellant voluntarily acknowledged wrongdoing at an early stage of the proceedings. The court committed appellant to DJF, setting his maximum period of confinement at eight years two months.
Appellant contends on appeal that his commitment to DJF must be vacated because it was not authorized by section 733. The respondent concedes the error. We agree with the parties and will reverse the judgment of the juvenile court.[5]
DISCUSSION
Section 733, subdivision (c) expressly states that a juvenile shall not be committed to DJF if he or she has been adjudged a ward of the court pursuant to section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of [s]ection 707, unless the offense is a sex offense set forth in subdivision (c) of [s]ection 290.008 of the Penal Code. Appellants most recent adjudication was for driving without a valid drivers license, a misdemeanor. Vehicle Code section 12500, subdivision (a) is not an enumerated offense in section 707, subdivision (b) or in Penal Code section 290.008, subdivision (c).[6]
Because the most recent offense attributable to appellant was a non-qualifying misdemeanor, the juvenile court erred in committing appellant to DJF. (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 1467-1468.) Accordingly, we will reverse the judgment of the juvenile court.
DISPOSITION
The judgment of the juvenile court committing appellant to DJF is reversed. On remand, the juvenile court is directed to vacate its order committing appellant to DJF.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
*Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
[2] The factual basis for appellants plea was that he placed one of his private parts on an eight-year-old victim.
[3] Appellant had a prior adjudication on August 25, 2005 for a misdemeanor violation of receiving stolen property (Pen. Code, 496, subd. (a)).
[4] The juvenile court here referred to the California Youth Authority (CYA). DJF was formerly known as CYA. (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. ( 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
[5] On May 11, 2009, we ordered this appeal coordinated with a subsequent appeal, case No. F057027, that arises from the same juvenile petition.
[6] Penal Code section 290 was amended in 2007. Under either Penal Code section 290, subdivision (d)(3), the former statute, or Penal Code section 290.008, subdivision (c), the current statute, Vehicle Code section 12500, subdivision (a) is not a described offense.
