Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. J59949 & J217384
BLEASE, Acting P. J.
The minor, Nathan L., was adjudged a ward of the court under Welfare & Institutions Code section 602 and committed to the California Youth Authority (CYA) for the maximum term of four years and six months.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
Effective July 1, 2005, the CYA was renamed the Department of Corrections and Rehabilitation, Juvenile Justice. (Gov. Code, § 12838, subd. (a).) For purposes of consistency, we will refer to the department as the CYA.
On appeal, he contends the juvenile court erred by failing to give him credit for all the time served and failing to exercise its discretion under section 731, subdivision (b) when fixing the maximum term of his commitment.
We agree with the minor on both claims and shall reverse the order of commitment and remand the matter for further hearing and to award additional credits.
FACTUAL AND PROCEDURAL BACKGROUND
On October 14, 2005, Tracy police officers entered a trailer park on Holly Drive where they saw the minor and two adult males standing on a driveway. Upon seeing the officers, the three-some turned and walked away. After the officers repeatedly ordered them to stop, the minor and one of the adult males complied, and they were ordered to place their hands on the patrol car and to stand still. One officer observed the minor lift his hand from the hood, lift up his left pant leg and rub his right foot against his left ankle. Although he was ordered to stop, he repeated his movements to conceal contraband hidden in his sock.
The minor was placed in handcuffs and when searched, the officer found three tablets of “ecstasy” in a plastic bag located in the minor’s sock. The minor attempted to run but was knocked down by a dog. When he attempted to run again, he tripped and fell and was placed in a patrol vehicle where he began kicking at the window. He continued to resist and was placed in restraints.
At the police station, the minor told the officer he ran because he knew he was going to be sentenced to CYA and did not want to go to prison. When the officer explained that the only thing he would accomplish by running was to incur another charge, the minor replied, “‘I don’t give a shit nigga. I’ll get that felony reduced to a misdemeanor and the misdemeanor reduced, just like I always do. I always run and never get charged.”
A wardship petition was filed (§ 602) alleging the minor committed the offenses of trespass (Pen. Code, § 602, subd. (L); Ct. 1), possession of a dangerous drug controlled substance (Health & Saf. Code, § 11377, subd. (a); Ct. 2), resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); Ct. 3), participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); Ct. 4) and vandalism. (Pen. Code, § 594, subd. (a)(1); Ct. 5.) The petition also gave notice the prosecution intended to increase the maximum term of confinement by aggregating the terms of three previously sustained petitions.
The previously sustained petitions were based upon the following violations: felony vandalism (Pen. Code, § 594, subd. (a)), misdemeanor possession of a switchblade knife (Pen. Code, § 653k), and misdemeanor possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).)
The minor pled guilty to possession of ecstasy, a felony (count two), and resisting an officer, a misdemeanor (count three) and the remaining charges were dismissed with Harvey waivers. At the disposition hearing, the court committed him to CYA for the maximum term of confinement of four years and six months and awarded him 388 days of credit for time served.
People v. Harvey (1979) 25 Cal.3d 754.
DISCUSSION
I.
Custody Credits
The minor contends the juvenile court failed to give him an additional 26 days of custody credit for the time he spent in custody between the date the probation report was prepared and the date of the dispositional hearing. Respondent concedes the juvenile court failed to award the minor for all precommitment time spent in custody but argues that the correct number of additional days is 19 days not 26 days. In his reply brief, the minor essentially concedes the probation report may be read to include all custody credits up to the first dispositional hearing, which would make respondent’s calculation correct.
We agree with respondent’s reading of the probation report and find the minor is entitled to receive an additional 19 days of custody credits.
A minor is entitled to receive credit against the maximum term of confinement for all days spent in custody prior to commitment. (In re Eric J. (1979) 25 Cal.3d 522, 535-536.)
The probation officer’s report, dated October 27, 2005, states that the minor had been in custody from October 15, 2005, through November 3, 2005, and that the total “current and aggregated” days of custody was 388 days. Consistent with those dates, the report also shows the disposition hearing date as November 3, 2005. The custody credits calculated by the probation officer therefore included all days of custody through November 3, 2005.
However, the disposition hearing was subsequently continued to November 22, 2005, and the minor remained in custody during that time. Nevertheless, the juvenile court failed to award the minor additional credits beyond those calculated by the probation officer. That was error. The minor is also entitled to receive custody credits for the additional 19 days he spent in custody from November 4, 2004, through November 22, 2005, the date of the final dispositional hearing.
We shall therefore direct that the dispositional order be amended to reflect an award of 407 days of custody credit.
II.
Exercise of Dispositional Discretion
The minor requests a remand to allow the juvenile court to exercise its discretion under section 731, subdivision (b)(hereafter section 731) to commit him to CYA for less than the maximum period of commitment. He argues the court failed to indicate on the record that it had engaged in the weighing process required by section 731. Respondent contends the minor has failed to overcome the presumption of correctness. We agree with respondent.
Section 731 provides in pertinent part that “[a] ward committed to the Division of Juvenile Facilities 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 the Division of Juvenile Facilities 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 . . . .” (Italics added.)
The italicized second sentence was added to section 731 by Statutes 2003, chapter 4, section 1 and became operative January 1, 2004. The amended version was subsequently construed in three published decisions to give “the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to CYA and to require the court to set that term of confinement based on the facts and circumstances of each case.” (In re Jacob J. (2005) 130 Cal.App.4th 429, 437; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1533, 1543; In re Sean W. (2005) 127 Cal.App.4th 1177.)
A judgment or order of the lower court is presumed correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), and on a silent record the “‘trial court is presumed to have been aware of and followed the applicable law’ when exercising its discretion.” (In re Jacob J., supra, 130 Cal.App.4th at p. 437.) Therefore, we will not presume error where the record does not affirmatively show on its face that the trial court misunderstood the scope of its discretion. (Id. at p. 438.)
However, as this court stated in In re Jacob J., supra, 130 Cal.App.4th at page 438, when the juvenile court “has stated only the maximum term of confinement that could have been imposed on an adult and is silent as to a maximum term based on the facts of the case, it has not spoken to the second, separate maximum called for by the amended statute. [¶] . . . [T]he record must reflect the court has considered those facts and circumstances [of the case] in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses. The juvenile court having failed to set that term, the matter must be remanded to the court for that determination.” (Ibid.)
Here the record shows that while the juvenile court considered the facts and circumstances of the case when committing the minor to the CYA, it made no statement concerning the facts and circumstances justifying imposition of the maximum term of confinement. Having failed to address the second separate maximum called for in section 731, the matter must be remanded to the juvenile court to make that determination.
DISPOSITION
The order committing the minor to the Department of Corrections and Rehabilitation, Juvenile Justice, for the maximum term of four years six months is reversed. The juvenile court is directed to set a maximum term of physical confinement based on the facts and circumstances of the case and to award the minor 407 custody credits. An amended order shall be prepared and forwarded to the Department of Corrections and Rehabilitation, Juvenile Justice.
We concur: SIMS , J. HULL , J.