Filed 7/26/17 In re M.M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

IN RE M.M., a Person Coming Under the Juvenile Court Law. H044356
(Monterey County
Super. Ct. No. JV001335)


THE PEOPLE,

Plaintiff and Respondent,

v.

M.M.,

Defendant and Appellant.


Appellant M.M. admitted one count of attempted arson (Pen. Code, § 455, subd. (a)), as alleged in an amended Welfare and Institutions Code section 602 petition. M.M. repeatedly violated the terms of his juvenile probation and refused to be housed in juvenile hall. When M.M. was 18 years old, the juvenile court held a disposition hearing and committed M.M. to county jail for two years. M.M. argues, and the People concede, that the juvenile court improperly committed M.M. to county jail because that is not an approved placement option for a ward who commits his or her offense while under 18 years old. For the reasons stated here, we accept the People’s concession and will reverse the disposition order and remand for a new dispositional hearing.
I. JUVENILE COURT PROCEEDINGS
While on juvenile probation for committing a sexual offense with a minor, and with judgment deferred, then-14-year-old M.M. lit a fire in a trash can in the boy’s bathroom at his middle school. An amended Welfare and Institutions Code section 602 petition alleged that M.M. committed one count of arson (Pen. Code, § 451, subd. (d)) and one count of attempted arson (Pen. Code, § 455, subd. (a)). M.M. admitted the attempted arson count, the arson count was dismissed, deferred entry of judgment was revoked, and M.M. was declared a ward of the court.
Between the jurisdictional finding in 2013 and a disposition hearing in 2017, M.M.’s juvenile probation required that he participate in wraparound services, the Juvenile Sex Offender Response Team (based on the earlier sustained petition), the Victim Offender Reconciliation Program, the placement program, and the Youth Center Program. He repeatedly violated probation by failing to attend school, using drugs, absconding from placements in other counties, and making inappropriate sexual comments toward a female correctional officer while in custody at juvenile hall. M.M. eventually refused to participate in the Youth Center Program and refused to be housed at juvenile hall. M.M. thought the Youth Center Program was too strict. He preferred county jail, explaining: “I can sleep as long as I want, I can watch TV all day if I want, I can get out of bed when I want, and I can talk on the phone for as long as I want.”
At the disposition hearing, the juvenile court stated it was “somewhat confounded about what to do about [M.M.’s] case.” All parties agreed that M.M. was ineligible for commitment to the Division of Juvenile Facilities/Division of Juvenile Justice, presumably because the most recent offense alleged and admitted by M.M. (attempted arson) is not a qualifying offense. (See Welf. & Inst. Code, § 733, subd. (c) [ward cannot be committed to Division of Juvenile Facilities if “the most recent offense alleged in any petition and admitted or found to be true by the court is not described in” Welfare and Institutions Code section 707, subdivision (b) or Penal Code section 290.008, subdivision (c)].) Finding that M.M. was “a clear and present danger to himself and others,” the juvenile court committed M.M. to county jail for two years. M.M. was 18 years old at that time.
II. DISCUSSION
The People concede that the juvenile court erred by committing M.M. to county jail. Wards of the court “shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public.” (Welf. & Inst. Code, § 202, subd. (b).) That guidance “may include punishment that is consistent with the rehabilitative objectives of this chapter.” (Ibid.) Punishment is defined to include committing wards to a local detention or treatment facility (such as juvenile hall, a camp, or a ranch), or to the Division of Juvenile Facilities (if eligible). (Welf. & Inst. Code, § 202, subd. (e)(1)–(e)(5).) “Commitment to the county jail is not included in the various specified options” provided in Welfare and Institutions Code section 202, meaning that a ward may not be committed to county jail. (In re Kenny A. (2000) 79 Cal.App.4th 1, 5.)
M.M.’s status as an 18-year-old does not make the commitment to county jail proper. Welfare and Institutions Code section 208.5, subdivision (a) provides: “Notwithstanding any other law, in any case in which a minor who is detained in or committed to a county institution established for the purpose of housing juveniles attains 18 years of age prior to or during the period of detention or confinement he or she may be allowed to come or remain in contact with those juveniles until 19 years of age, at which time he or she, upon the recommendation of the probation officer, shall be delivered to the custody of the sheriff for the remainder of the time he or she remains in custody, unless the juvenile court orders continued detention in a juvenile facility.” Under the foregoing section, M.M. will be eligible for transfer to county jail once he turns 19 years old (assuming his probation officer recommends that he be transferred). Until then, M.M. may not be committed to county jail.
We understand the difficult position the juvenile court faced here. M.M. had repeatedly violated probation and strongly resisted placement in juvenile hall or the Youth Center Program. And M.M.’s trial counsel failed to object to the juvenile court’s placement decision. But the “choice of places to which the [juvenile] court can commit a ward is essentially a legislative rather than a judicial prerogative” (In re Kenny A., supra, 79 Cal.App.4th at p. 7), and the county jail is not one of those places.
III. DISPOSITION
The disposition order is reversed and the matter is remanded for a new dispositional hearing.

____________________________________
Grover, J.




WE CONCUR:




____________________________
Premo, Acting P. J.




____________________________
Manoukian, J.








H044356 – People v M.M.