In re Rolando M. CA5 ( 2014 )

Filed 1/27/14 In re Rolando M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ROLANDO M., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE, F067185
Plaintiff and Respondent, (Super. Ct. No. JJD065325)
v.
ROLANDO M., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Jennifer Conn
Shirk, Judge.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
The court continued appellant, Rolando M., as a ward of the court after appellant
admitted allegations charging him with violating his probation. Following independent
review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 20, 2011, appellant and another male juvenile broke into a home in
Shafter, ransacked the interior, and took a Nintendo game console.
On January 26, 2012, the Kern County District Attorney filed a petition charging
appellant with residential burglary (Pen. Code, § 460, subd. (a)) and misdemeanor
vandalism (Pen. Code, § 594, subd. (b)(2)(A)).
On February 29, 2012, after appellant admitted the residential burglary charge, the
vandalism charge was dismissed, the matter was transferred to Tulare County for
disposition, and appellant was released to the custody of his mother. That evening,
appellant and several other juveniles took a toy vending machine from a business in
Earlimart. Appellant was arrested on March 1, 2012.
On March 5, 2012, the Tulare County District Attorney filed a petition charging
appellant with grand theft (Pen. Code, § 487, subd. (a)).
On April 12, 2012, appellant admitted the grand theft charge.
On April 26, 2012, the court placed appellant on probation and committed him to
the Tulare County Youth Correctional Center Unit for 365 days.
On May 2, 2012, the court set appellant’s maximum term of confinement at seven
years eight months.
On January 4, 2013, appellant completed the residential phases of the Long Term
Program and was released to aftercare on a GPS monitor. Appellant, however, did not
enroll in or attend North Kern Community School after his release, as he was required to
do by his conditions of probation.
2
On January 15, 2013, appellant’s mother reported that appellant absconded from
her residence with a known gang member and his whereabouts were unknown.
When detained on January 29, 2013, appellant was wearing a belt with an “N” on
the buckle, which is a type of buckle commonly worn by Norteño gang members.
Additionally, appellant admitted that he consumed alcohol when he was not staying at his
mother’s house.
On March 15, 2013, the probation officer filed a petition alleging that appellant
violated his probation by absconding from his parent’s residence on January 12, 2013,
failing to enroll in school and attend daily, associating with known gang members,
possessing gang indicia, and consuming alcohol.
On March 25, 2013, appellant admitted violating his probation.
On April 15, 2013, the court set appellant’s maximum term of confinement at
eight years two months and committed him to the Tulare County Youth Correctional
Center Unit for 240 to 365 days.
Appellant’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) Appellant has not responded to this
court’s invitation to submit additional briefing. However, our review of the record
disclosed that the court erred in its award of predisposition custody credit.
According to appellant’s probation report, appellant was in predisposition custody
between March 4, 2011, and April 9, 2013, the original date of appellant’s disposition
hearing, a total of 448 days as follows:
3/04/2011 through 3/25/2011 - 26 days
3/25/2011 through 3/29/2011 - 5 days
4/13/2011 through 4/22/11 - 10 days
6/07/2011 through 6/08/2011 - 2 days
3
3/01/2012 through 1/04/2013 - 309 days
1/04/2013 through 1/29/2013 - 25 days
1/29/2013 through 4/09/2013 - 71 days
Based on the probation department’s calculations, at appellant’s disposition
hearing on April 15, 2013, the court added six additional days and awarded appellant a
total of 454 days of predisposition custody credit. However, the department’s calculation
of predisposition credit is wrong for the following reasons.
The probation department gave appellant predisposition credit of 31 days for his
time in custody from March 4, 2011, through March 29, 2011, even though he was only
in custody 26 days during that period of time. Further, from March 1, 2012, through
January 4, 2013, appellant was in custody 310 days,1 not 309 days. Additionally, the
probation department gave appellant credit for 25 days of predisposition credit for
January 4, 2013, through January 29, 2013. However, appellant was released on the
electronic monitor on January 4, 2013, and he absconded from his home and remained at
large until he was arrested on January 29, 2013. Appellant was not entitled to
predisposition custody credit for the time he served on the electronic monitor (In re
Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079-1080) or for the time that he was out of
custody at large (id. at p. 1079). Thus, the court erred in awarding appellant 24 days of
predisposition credit for January 5, 2013, through January 28, 2013, because he was not
in custody on those days. Further, from January 29, 2013, through April 15, 2013,
1 Appellant was in custody 31 days during each of six different months in 2012
(March, May, July, August, October, and December) and 30 days during each of four
months in 2012 (April, June, September, and November) and four days from January 1,
2013, through January 4, 2013, for a total of 310 days (6 x 31 days = 186 days; 4 x 30
days = 120 days; 186 days + 120 days + 4 days = 310 days).
4
appellant was in custody 77 days.2 Thus, including the 10 days appellant was in custody
from April 13, 2011, through April 22, 2011, and the 2 days he was in custody from June
7, 2011, through June 8, 2011,3 appellant was entitled to a total of 425 days of
predisposition custody credit.4
Further, following an independent review of the record we find that with the
exception of the credit issues discussed above, no reasonably arguable factual or legal
issues exist.
DISPOSITION
Appellant’s award of predisposition credit is reduced from 454 days to 425 days
and the trial court is directed to correct its paperwork accordingly. As modified, the
judgment is affirmed.
2 Appellant was in predisposition custody 3 days from January 29, 2013, through
January 31, 2013, 28 days in February 2013, 31 days in March 2013 and 15 days in April
2013 for a total of 77 days (3 days + 28 days + 31 days + 15 days = 77 days).
3 In a letter brief filed at our invitation appellant contends he may have served a day
in custody on June 9, 2011. However, our review of the record disclosed that appellant
was cited and released on that date for possessing a lighter on a school campus.
4 26 days + 10 days + 2 days + 310 days + 77 days = 425 days.
5