In re K.S. CA1/2 ( 2014 )

Filed 10/28/14 In re K.S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re K.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A141002
K.S., (Contra Costa County
Defendant and Appellant. Super. Ct. No. J00-00736)
K.S. appeals from a dispositional order removing him from parental custody. He
contends the juvenile court erred in failing to determine his maximum term of
confinement and credit for predisposition custody. The People agree that the matter must
be remanded for correction of these errors, and we so order.
STATEMENT OF THE CASE
On November 17, 2011, the Placer County District Attorney filed a juvenile
wardship petition (Welf. & Inst. Code, § 602, subd. (a)) charging appellant, then 13 years
old, with two misdemeanors, second degree commercial burglary (Pen. Code, § 459) and
petty theft (Pen. Code, §§ 488/490.5). On September 6, 2012, the district attorney filed
another wardship petition, charging appellant with misdemeanor vandalism (Pen. Code,
§ 594, subd. (b)(2)(A)) and with possession of under one ounce of marijuana, an
infraction (Health & Saf. Code, § 11357, subd. (b)).
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On January 16, 2013, the juvenile court ordered appellant released on home
supervision. Appellant admitted one count of each of the petitions, burglary and
vandalism, and the remaining counts were dismissed. On February 19, the case was
transferred to Contra Costa County for disposition, and on May 30, 2013, appellant was
placed on formal probation for six months, residing in the home of his mother.
On October 11, 2013, the probation department filed a notice of probation
violation (Welf. & Inst. Code, § 777) alleging that appellant tested positive for
tetrahydrocannabinol (THC), was suspended from school twice, and was disruptive in
school, resulting in detention. Appellant was placed on home supervision pending the
probation violation hearing, then two weeks later arrested for petty theft (Pen. Code,
§§ 484/488, subd. (a)), false identification (Pen. Code, § 148.9), and violating the terms
of home supervision.
On November 1, 2013, appellant admitted violating home supervision and was
ordered detained in juvenile hall pending a hearing on the probation violations. On
November 5, he admitted violating probation by testing positive for THC and being
suspended from school, and was ordered detained pending disposition. On November 15,
he was adjudged a ward of the court and released to his mother on 90-day home
supervision.
Another notice of probation violation was filed on December 11, 2013, alleging
another school suspension and another positive THC test, and on December 13 appellant
was ordered detained in juvenile hall pending a hearing on the new violations. On
January 2, 2014, appellant admitted the violations.
A contested dispositional hearing was held on January 7, 2014. The court
continued appellant’s wardship “with no termination date” and ordered appellant
removed from his mother’s custody and detained at juvenile hall pending delivery to
placement in a court-approved home or institution. On February 4, appellant was
accepted at Unicorn Youth Services.
Appellant filed a timely notice of appeal on February 5, 2014.
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DISCUSSION1
When a minor is removed from the physical custody of his or her parent as a result
of a wardship order, “the order shall specify that the minor may not be held in physical
confinement for a period in excess of 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.” (Welf. & Inst. Code, § 726, subd.
(d).) “Since an adult’s term is reduced by credit for preconviction custody, [Welfare and
Institutions Code] section 726 should be interpreted as entitling a minor to credit for time
previously spent in physical confinement when physical confinement is subsequently
selected as a disposition.” (In re Randy J. (1994) 22 Cal.App.4th 1497, 1503, citing In re
Eric J. (1979) 25 Cal.3d 522, 535-536.) “In a juvenile delinquency proceeding, ‘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 A.M. (2014) 225 Cal.App.4th 1075, 1085, quoting In re Emilio C.
(2004) 116 Cal.App.4th 1058, 1067.)
On January 7, 2014, when the juvenile court ordered appellant removed from his
mother’s custody, the court continued the wardship “with no termination date,” ordered
appellant detained at juvenile hall pending delivery to placement, and found that “the
likely date by which [appellant] may safely be returned home is one year from today’s
date, which would be January 7, 2015.” The court did not refer to the maximum period
of confinement and did not determine the amount of time appellant had already spent in
custody.
According to the December 13, 2013 probation report, upon a finding of violation
of probation, “the court ha[d] the authority to impose 1 year 1 month and 6 days of
confinement time as of December 13, 2013.” The court referred to this calculation at the
January 2, 2014 hearing when, addressing appellant’s admissions, the court asked if
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The facts are not relevant to the only issue presented on this appeal.
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appellant understood “that if you go ahead and admit to those two probation violations,
you subject yourself to a maximum period of confinement of one year, one month, and
six days as of December 13th, and then you’d get credit for time served since that date[.]”
The court did not refer to this calculation at the January 7, 2014 dispositional hearing,
however, and in any event the maximum period of confinement calculated on that date
would have had to account for the additional time appellant spent in custody between
December 13, 2013, and January 7, 2014.
As the parties agree, the matter must be remanded for the juvenile court to
calculate appellant’s predisposition credit and maximum period of confinement.
DISPOSITION
The matter is remanded to the juvenile court for determination of appellant’s
predisposition custody credit and maximum period of confinement and entry of an
amended order reflecting these determinations.
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
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