Michael P.
Filed 2/27/13 In re Michael P. CA5
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opinion has not been certified for publication or ordered published for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
MICHAEL P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL P.,
Defendant and
Appellant.
F064438
(Super.
Ct. No. 506734)
APPEAL from
a judgment of the Superior Court of
County. Nan Cohan Jacobs, Judge.
Kelly Lynn
Babineau, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On June 2,
2009, appellant, Michael P., a minor, was adjudicated of committing a felony
violation of Penal Code section 245, subdivision (a) (assault with a deadly
weapon or by means of force likely to cause great bodily injury). On November 5, 2009, the juvenile court ordered
appellant committed to the Department of
Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), and
declared his maximum term of physical confinement (Welf. & Inst. Code, §
731, subd. (c))
title="">[1] (MTPC) to be four years four months, based on
the instant offense and another offense adjudicated in a prior wardship
proceeding, less 267 days of custody credit.
By a document filed December 23, 2011, the Stanislaus County Probation
Department notified the juvenile court that appellant was discharged from the
jurisdiction of DJJ on December 14, 2011, and requested that the court recall
the DJJ commitment and return appellant to probation status.
recalled appellant’s DJJ commitment and placed him on probation, with various
terms and conditions. At a subsequent
hearing on February 10, 2012, the court determined appellant’s probationary
period to be 16.3 months, which it calculated by crediting appellant with 31.7
months (951 days) in custody against a total term of 48 months.
Appellant’s
sole contention on appeal is that the
court erred in setting his probationary period.
Specifically, appellant argues the court should have determined the
probationary period by awarding him 1,542 days (51.4 months) against a total
term of 52 months, for a total probationary period of .6 months. We reject appellant’s argument, but find
other error and remand for further proceedings.
DISCUSSION
This case
concerns the application of recently enacted section 1766.01. Under that statute, where a minor has been
committed to DJJ, the Juvenile Parole Board (the Board) may “discharge[] [the
minor] from the jurisdiction of [DJJ] and permit[] his or her liberty under
supervision of probation and subject to the jurisdiction of the committing
court pursuant to [section 1766.01,] subdivision (c).†(§ 1766.01, subd. (b)(1).) Subdivision (c) of section 1766.01 provides,
in relevant part, as follows: “The
county of commitment shall supervise the reentry of any ward still subject to
the court’s jurisdiction and discharged from the jurisdiction of [DJJ].†(§ 1766.01, subd. (c)(1).) The juvenile court of the county of
commitment must conduct a “reentry disposition hearing,†the purpose of which
is to allow the court to “identify those conditions of supervision that are
appropriate under all the circumstances of the case and consistent with
evidence-based practices.†(§ 1766.01,
subd. (c)(6).)
As indicated above, the Board
discharged appellant from DJJ, and the juvenile court, following a reentry
disposition hearing, placed appellant on probation. And, as also indicated above, the issue on
appeal concerns the length of the period of probation supervision to which
appellant is subject. Thus, we must
answer the question: For a minor
discharged from DJJ pursuant to section 1766.01 and returned to the county of
commitment for probation supervision, what is the standard for determining the
length of the period of such supervision?
Once this question has been answered, the next question is whether the
court correctly applied the applicable standard.
As we explain below, we conclude as
follows: Under section 1766.01, a court
must determine a ward’s probationary period following discharge in the same
manner it determines a ward’s MTPC when it orders a ward committed to DJJ,
i.e., by applying section 731. This is a
two-step process in which the juvenile court first determines the maximum
period an adult could be imprisoned for the same offense(s) for which the minor
was committed to DJJ. This sets the
outside limit of the minor’s period of confinement. The court then proceeds to the second step in
which the court determines the ward’s “maximum term of the physical
confinement†(§ 731(c)), in the exercise of its discretion, upon
consideration of the facts and circumstances of the offenses for which the
minor is being committed. The MTPC may
not exceed, and may be less than, the maximum period of imprisonment calculated
in the first step of the analysis. Here,
it is apparent that the court did not employ the analysis summarized
above. Moreover, the record does not
preclude the possibility that had the court done so, it would have, in the
exercise of its discretion, arrived at a probation period less than the one it
imposed. Because it appears the court
was not aware of the scope of its discretion, the appropriate disposition is to
reverse the probationary period set by the court and remand to allow the court
to set the probationary period utilizing the proper standard.
We turn now to our explanation of
these conclusions. To do so, we first
explain why we apply the section 731 two-step analysis, and then we explain the
correct application of this analysis to the instant case.
Why Section 731 Applies
Although section 1766.01 provides
that a minor’s supervision on probation following discharge from DJJ is subject
to the committing court’s jurisdiction pursuant to subdivision (c) of section
1766.01, the statute is silent on the permissible length of the probationary
period. However, an uncodified section
of the legislation by which section 1766.01 was enacted provides, in relevant
part: “It is ... the intent of
Legislature that, upon their discharge from state jurisdiction, court
jurisdiction over these wards be continued for a total period of time not
exceeding the maximum periods of time set forth in Section 731 of the Welfare
and Institutions Code.†(Stats. 2010,
ch. 729, § 25, p. 5098.) Given this statement of
legislative intent, we interpret section 1766.01 to require that the juvenile
court utilize section 731(c) in determining the length of the probationary
period for a minor discharged pursuant to section 1766.01.
How
Section 731 Applies
Section 731 provides, inter alia,
that a juvenile court may order a minor adjudicated of any of certain
enumerated offenses committed to DJJ, and contains the following provisions
regarding the maximum periods of such commitments: “A ward committed to [DJJ] may not be held in
physical confinement for a period of time in excess of the maximum period of
imprisonment that could be imposed upon an adult convicted of the offense or
offenses that brought or continued the minor under the jurisdiction of the
juvenile court. A ward committed to
[DJJ] also may not be held in physical confinement for a period of time in
excess of the maximum term of physical confinement set by the court based upon
the facts and circumstances of the matter or matters that brought or continued
the ward under the jurisdiction of the juvenile court, which may not exceed the
maximum period of adult confinement as determined pursuant to this
section.†(§ 731(c).)
Thus, section 731 provides that a
juvenile court must make two distinct determinations regarding maximum time
periods when committing a minor to DJJ.
(In re Carlos E. (2005) 127 Cal.App.4th 1529, 1539 (Carlos E.).)
First, the court must determine the “maximum period of imprisonment†for
an adult convicted of the same offenses for which the minor is being committed
to DJJ. (§ 731(c).) Next, the court must set a “maximum term of physical confinement†in DJJ. (Ibid.) In making this second determination, the
court must exercise its discretion, “based upon the facts and circumstances of
the matter ... that brought ... the ward under the jurisdiction of the juvenile
court.†(Ibid.) This maximum may not
be more than the section 731(c) “maximum period of imprisonment†for an adult
as determined first, but it may be less.
(Carlos E., at p. 1542.) The court is “[not] restrict[ed]†to the
“adult sentencing triad.†(
Thus, we must first make the first of the two determinations
required by section 731, and answer the following question: What is the section 731(c) “maximum period of
imprisonment†for an adult convicted of the offenses for which appellant was
committed to DJJ, viz., felony aggravated assault in violation of Penal Code
section 245, subdivision (a)(1) and annoying or molesting a child under age 18
(Pen. Code, § 647.6), a misdemeanor?
Section 726 provides part of the answer. That statute provides that when a juvenile
court “remove[s] [a minor] from the physical custody of his or her parent,†the
court must declare the maximum period the minor can be held in “physical
confinement,†which period may not exceed “the maximum term of imprisonment
which could be imposed upon an adult convicted of the offense or offenses which
brought or continued the minor under the jurisdiction of the juvenile
court.†(§ 726, subd. (c).) Further, and most relevant for our purposes,
the statute defines “maximum term of imprisonment†for purposes of section 726
provides: “If the court elects to aggregate
the period of physical confinement on multiple counts, or multiple petitions,
including previously sustained petitions adjudging the minor a ward within
Section 602, the ‘maximum term of imprisonment’ shall be the aggregate term of
imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code....†(§ 726, subd. (c).) Under Penal Code section 1170.1, a sentence
for multiple felonies comprises the “principal†term, “subordinate†term, and
any additional term imposed for applicable enhancements. The principal term consists of the greatest
term of imprisonment imposed by the court for any of the crimes. (Pen. Code, § 1170.1, subd. (a).) The subordinate term for each consecutive
offense consists of one-third of the middle term of imprisonment prescribed for
each other felony conviction. (Ibid.) Subordinate
misdemeanor terms are calculated as one-third of the maximum term for such
offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538 (Eric J.).)
When we apply the foregoing principles to the instant case,
the “maximum period of imprisonment†(§ 731(c)) consists of four years on
appellant’s adjudication of aggravated assault (Pen. Code, § 245, subd. (a)(1)
[four years is maximum term]) plus four months on appellant’s misdemeanor
adjudication (Pen. Code, § 647.6 [one-year maximum term]; Eric J., supra, 25 Cal.3d
at pp. 536-538 [misdemeanor terms calculated as one-third of maximum]).
Our inquiry does not end here however. The final step in determining appellant’s
section 731(c) “maximum period of imprisonment†is to subtract from the period
calculated above the correct number of days of time in custody for which
appellant is to be credited. (Cf.
In order to determine appellant’s custody credits, we must first
summarize the relevant background, viz., the offenses of which appellant stands
adjudicated and the time he spent in custody prior to his discharge from DJJ.
Appellant’s
Offenses
Appellant
stands adjudicated of five offenses. He
was initially adjudged a ward of the court on January 7, 2004, when he was 12
years old, following his admission that he committed a violation of Penal Code
section 647.6 (annoying or molesting a child under age 18), a misdemeanor. The court placed appellant on probation.
Subsequently, appellant was
readjudged a ward as follows: On March
4, 2005, based on his admission of his second offense, unlawfully causing fire
to property (Pen. Code, § 452, subd. (d)), a misdemeanor; on August 31, 2006,
based on his admission of his third offense, second degree burglary (Pen. Code,
§§ 459, 460, subd. (b)); and on November 21, 2007, based on his admission of
his fourth offense, misdemeanor vandalism (Pen. Code, § 594, subd.
(b)(1)). In each of these three
instances, he was continued on probation.
Finally, as indicated earlier,
appellant was ordered committed to DJJ following his admission of committing a
felony violation of Penal Code section 245, subdivision (a)(1), his fifth
offense. The court declared appellant’s
MTPC to be four years four months, consisting of four years based on only two
of his offenses, viz., his 2009 felony aggravated assault adjudication and four
months on his 2004 misdemeanor adjudication, less 267 days of custody
credit. We refer to these two offenses
collectively as the commitment offenses.
The court did not include in appellant’s MTPC time for any of
appellant’s other offenses.
Periods of
Confinement
Between
June 2004 and August 2008 appellant committed at least six noncriminal
violations of probation.
A juvenile
hall detention log (detention log), considered by the court at the reentry
disposition hearing, shows that after suffering his first adjudication—for
violating Penal Code section 647.6—and being placed on probation, appellant was
in custody for three separate periods totaling 37 days—June 7, 2004, through
June 18, 2004; June 29, 2004, through July 1, 2004; and August 11, 2004,
through August 13, 2004—prior to committing his second offense. Thereafter, based on his second offense, he
was confined in juvenile hall from February 18, 2005, through March 8, 2005, a
period of 19 days.
As
indicated above, appellant was continued on probation following his second
adjudication, and thereafter, as a result of probation violations, he was
confined in juvenile hall for the following periods: 31 days, from March 21, 2005, through April
20, 2005; 52 days, from September 28, 2005, through November 18, 2005; and 120
days, from January 27, 2006, through May 26, 2006.
The
petition alleging appellant’s third offense was filed July 21, 2006, and he
admitted the allegation on August 31, 2006.
He was subsequently confined in juvenile hall from September 6, 2006,
through February 6, 2007, a period of 154 days.
Appellant
was again taken into custody on October 19, 2007, and on November 6, 2007, he
admitted allegations that he committed misdemeanor vandalism—his fourth
offense—and that he violated his probation in all previous cases. He was confined in juvenile hall from October
19, 2007, through November 21, 2007, a period of 34 days.
He was
again taken into custody on April 14, 2008, and on April 16, 2008, he admitted
violating his probation in all previous cases.
He was confined in juvenile hall from April 14, 2008, through May 2,
2008, a period of 19 days.
Appellant
was taken into custody on July 29, 2008, and a petition alleging a noncriminal
violation of probation in all previous cases was filed the next day. The minor admitted the allegations on July
31, 2008, and on August 14, 2008, the court ordered appellant to serve 329 days
in juvenile hall.
Appellant
was serving that term when, on May 16, 2009, he committed his fifth
offense. He was ordered committed to DJJ
on November 5, 2009, and was transported to DJJ on December 23, 2009, where he
remained through December 28, 2011. From
July 29, 2008, through December 28, 2011, appellant was confined, either in
juvenile hall or DJJ, for a period of 1,248 days.
Appellant’s
total confinement time, in juvenile hall and DJJ, prior to release from DJJ,
was 1,715 days.
Analysis
Two important points emerge from
the foregoing summary: (1) some of
appellant’s time in custody, viz., his first 37 days in custody for probation
violation following his first adjudication and prior to the commission of his
second offense, and all days of DJJ confinement, are attributable solely to one
or both of the commitment offenses; and (2) the remainder of his custody time
is attributable, at least in part, to his other offenses.
In determining to what extent appellant’s “maximum period
of imprisonment†(§ 731(c)) must be reduced for time in custody where some
of that time is attributable, at least in part, to offenses other than the
commitment offenses, we are guided by our Supreme Court’s decision in
In
[an adult offender’s] period of presentence custody stems from multiple,
unrelated incidents of misconduct, such custody may not be credited against a
subsequent formal term of incarceration if the prisoner has not shown that the
conduct which underlies the term to be credited was also a ‘but for’ cause of
the earlier restraint.†(
not entitled to credit for presentence confinement unless he shows that the
conduct which led to his conviction was the sole reason for his loss of liberty
during the presentence period.†(Id.
at p. 1191.)
The court based this rule of “‘strict causation’†(
receive credit against his sentence for all days spent in custody, including
presentence custody (subd. (a)), but ‘only
where the custody to be credited is attributable to proceedings related to the
been convicted’ (subd. (b), italics added).â€
(Bruner, at p. 1180.) The court held that this statute “did
not intend to allow credit for a period of presentence restraint unless the conduct
leading to the sentence was the true and only unavoidable basis for the
earlier custody.†(Id. at p. 1192.) The
defendant in Bruner was not entitled
to presentence credits, the court held, “[b]ecause defendant has not shown that
he could have been free during any period of his presentence custody but for
the same conduct that led to the instant conviction and sentence....†(Id.
at p. 1195.)
The California Supreme Court has refused to hold this statute
directly applicable to juvenile court
proceedings (Eric
25 Cal.3d at pp. 533-535), although it concluded that juveniles are entitled to
precommitment credit for time spent in physical confinement based on a
construction of section 726, subdivision (c).
(Eric J., supra, 25 Cal.3d at p. 536.)
However, although Penal Code section 2900.5 does not directly apply to
juveniles, the California Supreme Court recognized in In re Ricky H. (1981) 30 Cal.3d 176 (Ricky H.) that juveniles,
like adults, should receive credit only “‘where the custody to be credited is
attributable to proceedings related to the same conduct for which the defendant
has been convicted.’†(
2900.5.) The court concluded in
to credit for a detention that “obviously was not attributable to proceedings
related to the†latest offense. (
re Gustavo M. (1989) 214 Cal.App.3d 1485, 1500 (Gustavo M.), the court explained:
“A juvenile is entitled to credit for the time he was detained in juvenile
hall pending resolution of charges against him.
(... Eric J. [,
credits for time spent in juvenile hall on an unrelated commitment.â€
We conclude that, as suggested by Ricky H. and Gustavo M.,
the Bruner approach is applicable
here. And, when we examine the record
and apply Bruner to the instant case,
two salient points emerge. First, the
detention log shows appellant was in custody in juvenile hall for violating his
probation in his first case for three separate periods totaling 37 days, before
he was taken into custody on February 18, 2005, for the conduct underlying his
second adjudication. Therefore, that
custody time is solely attributable to an offense for which appellant was
committed to DJJ, and he is entitled to custody credit for that time. Second, appellant was continued on probation
following his 2005 adjudication of his second offense, and subsequent periods
of confinement were based in part on
violating probation in that case. Moreover, appellant later suffered his third
and fourth adjudications, and subsequent periods of confinement preceding his
commitment to DJJ in 2009 were also based, in
part, on those adjudications. Thus, his confinement following his arrest
for his second offense and preceding his DJJ commitment were attributable in
part, but not solely, to his commitment offenses, and accordingly, he is not
entitled to credit for that time.
The question that remains is whether appellant is also entitled to
credit for his time in custody from November 5, 2009, the date he was committed
to DJJ, through December 28, 2011, the last day he was confined in DJJ, a total
of 784 days. Although
be credited for the juvenile equivalent of postsentence
custody, the principle underlying Bruner,
i.e., that a person confined is entitled to credit for confinement time solely
attributable to the conduct for which he or she is sentenced, applies. As the court stated in People v. Buckhalter (2001) 26 Cal.4th 20: “Everyone sentenced to prison
for criminal conduct is entitled to credit against his term for all actual days
of confinement solely attributable to the same conduct. ([Pen. Code,] §§ 2900, subd. (c), 2900.1,
2900.5, subds. (a), (b); see Bruner,
at p. 30.) Appellant was committed to
DJJ based on only the commitment offenses, and therefore, his time in custody
following his commitment to DJJ is attributable solely to those offenses. In order to comply with the directive of section 731(c)
that a minor may not be held in custody for a period of time in excess of the
time an adult convicted of the same offenses as the minor could be confined in
prison, appellant must be credited for his time in custody following his
commitment to DJJ.
Conclusion
On this record then, the first of the maximum periods required to
be determined under section 731(c)—appellant’s “maximum period of
imprisonmentâ€â€”is four years four months, less 821 days of custody credit (37
days of precommitment credit plus 784 days of postcommitment credit). As indicated above, under section 731, this
first determination sets the ceiling for the next maximum period to be
determined under the statute. The
correct approach for a juvenile court determining the length of appellant’s
probationary period under section 1766.01 would be first to perform the
foregoing analysis and then move to the second determination required by
section 731(c), i.e., the determination, in the exercise of the court’s
discretion, of “the maximum term of physical confinement set by the court based
upon the facts and circumstances of the matter or matters that brought or
continued the ward under the jurisdiction of the juvenile court, which may not
exceed the maximum period of adult confinement ....†(§ 731(c); see Carlos E., supra, 127
Cal.App.4th 1529.)
It is apparent from the foregoing that appellant’s claim that his
probationary period, as a matter of law, should be set at four years four
months, less 1,524 days of credit, is without merit. However, from an examination of the record it
is also apparent, as we explain below, that the juvenile court’s determination
of appellant’s probationary period—16.3 months, calculated by
crediting appellant with 31.7 months (951 days) in custody against a total term
of 48 months—cannot stand.
At the reentry disposition hearing,
defense counsel argued as
follows: Appellant was committed to DJJ
based, in part, on his first offense, and all of his confinement time was
attributable in part to violating probation imposed based on that offense. Therefore, appellant’s probationary period
should be calculated by subtracting from the maximum term of imprisonment
declared by the court upon appellant’s 2009 commitment to DJJ—four years four
months—all time appellant had spent
in custody.
The
juvenile court rejected this argument.
The court stated the following:
It would “treat the 245(a)(1) [appellant’s fourth offense] as an
independent event†for which appellant’s time in custody must be “treat[ed] ...
separatelyâ€; appellant’s “max confinement time just for that one charge is 48
monthsâ€; following his arrest on that offense on May 29, 2009, he was confined,
in juvenile hall and DJJ, for 951 days—or 31.7 months, calculated by dividing
951 by 30; and therefore his probationary period should be 48 months, less 31.7
months, i.e., 16.3 months.
The foregoing—notably, the court’s apparent determination of four
years, rather than four years four months, as the longest period of probation
it could conceivably impose, and the absence of any mention of the uncodified
statement of legislative intent of section 1766.01 or of section
731—demonstrates that the juvenile court did not determine appellant’s
probationary period by making the two determinations required by section
731(c). Accordingly, we will remand the
matter to allow the court to determine the length of appellant’s probationary
period under section 731(c), as required under section 1766.01. (Cf. People
v. Brown (2007) 147 Cal.App.4th 1213, 1228 [“Defendants are entitled to
‘sentencing decisions made in the exercise of the “informed discretion†of the
sentencing court,’ and a court that is unaware of its discretionary authority
cannot exercise its informed discretionâ€].)
DISPOSITION
The court’s order setting appellant’s probationary period at 16.3
months is reversed. The matter is
remanded for a new reentry disposition hearing.
At that hearing, the court shall set the length of appellant’s
probationary period by conducting the two-step process discussed here, as
follows: The court shall first set
appellant’s Welfare and Institutions Code section 731, subdivision (c) (section
731(c)) “maximum period of imprisonment†at four year four months, less 821
days of custody credit. The court shall
then set appellant’s probationary period in the same manner it would set a
maximum term of physical confinement under section 731(c), i.e., in the exercise
of its discretion, after considering the facts and circumstances of the matters
for which appellant was committed to the Department of Corrections and
Rehabilitation, Division of Juvenile Justice.
Appellant’s probationary period may be less than, but may not exceed,
the maximum period of imprisonment, and the court is not restricted by the
sentencing triad for appellant’s felony commitment offense.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Peña, J.
name="_ftn2" title="">[1] Except
as otherwise indicated, all further statutory references are to the Welfare and
Institutions Code. We refer to section
731, subdivision (c) as section 731(c).
