Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Nos. JW094752-07 & JW094752-08. Peter A. Warmerdam, Referee.
James L. Lozenski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
OPINION
INTRODUCTION
Appellant, Daniel S., was charged in a seventh supplemental petition pursuant to Welfare and Institutions Code section 602 on September 28, 2006, with second degree burglary (Pen. Code, § 460, subd. (b), count one), receiving stolen property (Pen. Code, § 496, subd. (a), count two), and with violating probation (§ 777, subd. (a)(2), count three). On November 9, 2006, appellant admitted counts two and three. Count one was dismissed. Appellant admitted count two as a felony.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Appellant’s original sustained petition was on September 7, 2001 when he admitted petty theft of two bicycles (Pen. Code, § 488). On November 15, 2001, appellant admitted allegations in a first supplemental petition of petty theft and violating his probation. On January 29, 2002, appellant admitted allegations in a second supplemental petition that he violated probation and committed grand theft (Pen. Code, § 487, subd. (c)). On April 3, 2002, appellant admitted allegations in a third supplemental petition that he committed misdemeanor assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and violated probation. On September 8, 2004, appellant admitted allegations in a fourth supplemental petition that he committed second degree burglary and violated probation. On November 24, 2004, appellant admitted allegations in a fifth supplemental petition that he committed second degree burglary and violated probation. On October 4, 2005, appellant admitted allegations in a sixth supplemental petition that he committed second degree burglary and violated his probation.
Appellant was charged in an eighth supplemental petition filed on November 21, 2006, pursuant to section 602, with felony possession of phencyclidine (Health & Saf. Code, § 11378.5, count one), possession of methamphetamine for sale (Health & Saf. Code, § 11378, count two), and violating probation (§ 777, subd. (a)(2), count three). There was an allegation that counts one and two were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). On December 5, 2006, appellant admitted count two as a felony and count three. The remaining allegations were dismissed.
At the disposition hearing on December 27, 2006, the juvenile court committed appellant to the Department of Corrections and Rehabilitation, Juvenile Justice for a maximum term of six years eight months. In setting the maximum term of confinement, the juvenile court aggregated terms from prior petitions. The court granted appellant custody credits of 501 days. On appeal, appellant contends the record is vague and incomplete as to how his custody credit was calculated.
Because the only issue on appeal concerns the calculation of custody credits, we do not review the underlying facts of each petition. We instead review the relevant dispositions of the petitions filed against appellant as well as the content of the record concerning appellant’s custody credit.
FACTS
Appellant was arrested on the original petition on July 23, 2001. He would likely be entitled to custody credit for the day of his arrest, but the first supplemental petition filed on October 17, 2001 states that appellant had zero credits. When appellant appeared on October 31, 2001 for a detention hearing, he was not in custody. The disposition report noted appellant had been detained for five days in juvenile hall. Appellant was ordered on November 15, 2001 to spend five days in juvenile hall. The clerk’s minute order states appellant was entitled to zero days of custody credit.
The second supplemental petition states appellant was detained on November 27, 2001. An amended petition deemed filed on January 29, 2002, states appellant was detained as of November 27, 2001. A probation report filed on February 15, 2002, indicates that at the time appellant committed the offenses on November 12, 2001 and November 27, 2001, he was arrested and released to his mother. Appellant was awarded custody credit of five days and ordered to serve ten days in juvenile hall.
When the third supplemental petition was filed on March 11, 2002, it indicated appellant had 13 days of custody credits. Daniel was arrested on a bench warrant on March 14, 2002 for failing to appear at a hearing scheduled for March 13, 2002. As of April 3, 2002, he had remained in juvenile hall. The clerk’s entry in the minute order states that appellant had 13 days of custody credit, though he had been in juvenile hall 21 days since March 14, 2002 and had ten days of custody credit prior to his most recent arrest. On April 17, 2002, the court noted appellant had 48 days of custody credit. At that time, appellant was ordered to stay in juvenile hall pending placement in a group home. Appellant was placed in the group home on May 15, 2002. This would have entitled appellant to custody credit of 76 days if the total of 48 days was accurate on April 17, 2002.
On May 15, 2002, appellant was placed in the Pacific Lodge Group Home and remained there until March 3, 2004 for a total of 659 days. The record does not indicate whether this institution is a secure facility. At a permanency planning hearing on March 28, 2003, a minute order entry indicates appellant had 76 days of custody credit.
The fourth supplemental petition states appellant was detained on June 27, 2004. A readiness report filed on September 8, 2004 states that appellant was arrested on June 21, 2004, and again on June 27, 2004. He was then released to his mother’s custody. The report states appellant has 76 days of custody credit, which do not include the two days he was arrested and detained. Appellant was committed to Camp Erwin Owen on September 8, 2004 until he was released on February 8, 2005.
A fifth supplemental petition alleged that appellant burglarized a car on August 29, 2004, prior to his commitment to Camp Erwin Owen. On November 24, 2004, appellant admitted the allegations of the petition. On that date, he had already been in custody for 78 days in Camp Erwin Owen. Adding this amount to the 76 days of custody credit appellant had earlier accrued, it would appear he was entitled to 154 days of custody credit. The minute order entry, however, indicates appellant was only entitled to 124 days of custody credit.
The sixth supplemental petition indicates appellant was detained as of August 11, 2005. This petition was filed on August 25, 2005. A detention hearing conducted on September 15, 2005, indicates appellant was not present and was “at large.” Appellant was arrested in his home on September 23, 2005. On October 4, 2005, appellant admitted some of the allegations in the sixth supplemental petition. At that time, he was in custody. On October 19, 2005, appellant was committed to the Kern Crossroads Facility. The minute order entry indicates he had 306 days of custody credit. Appellant was released from the Kern Crossroads Facility on March 30, 2006. This confinement lasted 163 days. As of this date, assuming the accuracy of the 306 days of earlier custody credit, appellant was entitled to 469 days of custody credit.
The seventh supplemental petition was filed on September 28, 2006. He had been detained from August 26, 2006. This is a span of an additional 34 days. The petition states appellant had 469 days of custody credit. Appellant admitted allegations from this petition on November 9, 2006. At that time, he was not in custody. The record does not indicate whether he remained in custody after September 28, 2006, and if so, for how long. If appellant was in custody only between August 26, 2006 and September 28, 2006, his total custody credit would be 503 days. It would be longer, of course, if he spent additional time in custody prior to the November 9, 2006 hearing.
The eighth supplemental petition filed on November 21, 2006, indicates that appellant was detained as of November 18, 2006. On December 5, 2006, appellant admitted allegations from the eighth supplemental petition. He was still in custody. Appellant apparently remained in juvenile hall until the disposition hearing on December 27, 2006. From the time of his detention on November 18, 2006, appellant had spent another 40 days in custody. The court only awarded, however, 501 days of custody credit.
DISCUSSION
Appellant contends the juvenile court erred in failing to accurately calculate his custody credits. He also argues that he may be entitled to 659 days of custody credit for time he spent in the Pacific Lodge Group Home.
The record in the instant action is at times unclear. It would appear that appellant is entitled to an additional 2 days for his commitment between August 26, 2006 and September 28, 2006, as well as 40 days of custody credit from November 18, 2006 to December 27, 2006. There may be other gaps in the record. The probation reports, for instance, do not always indicate appellant’s total time in custody. Also, we cannot be certain from this record whether appellant was in custody at any time between September 28, 2006 and November 9, 2006.
Where there are questions concerning a minor’s whereabouts or other uncertainties in the record concerning precommitment custody credit, it is a matter that should be directed to the juvenile court. (In re Pedro M. (2000) 81 Cal.App.4th 550, 556-557; also see In re Ricky H. (1981) 30 Cal.3d 176, 191-192; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1500-1501.) We therefore reject respondent’s argument that appellant has failed to demonstrate uncertainties in the present record that would justify remand to clarify appellant’s custody credit.
It would appear that appellant’s placement in the Pacific Lodge Group Home was to an unsecure facility. If this is so, appellant would not be entitled to custody credit for his placement there. (In re Randy J. (1994) 22 Cal.App.4th 1497, 1504-1506.) From the current record, however, we cannot be certain that the Pacific Lodge Group Home was an unsecure facility, or, if it had a secure component to which appellant was assigned for all or part of his 659 day stay there. Because we otherwise have to remand this case to the juvenile court for it to determine appellant’s custody credits, we will direct the juvenile court to also determine whether appellant’s stay at the Pacific Lodge Group Home was at a secure or an unsecure facility. If all or part of appellant’s stay at the Pacific Lodge Group Home was in a secure setting, he will be entitled to additional custody credits.
DISPOSITION
The case is remanded to the juvenile court for a hearing on how many additional days of custody credits, if any, appellant may be entitled to receive. The court is directed to make a finding concerning whether any or all of appellant’s stay at the Pacific Lodge Group Home was in a secure facility. If it was, the court shall award additional, appropriate custody credits for appellant’s stay in that facility. If the court determines appellant is entitled to additional custody credit, it shall prepare an amended commitment order and forward it to the appropriate authorities. The judgment is otherwise affirmed.