Opinion
H030470
5-17-2007
In re KIMBERLY B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY B., Defendant and Appellant.
NOT TO BE PUBLISHED
When a juvenile is "detained in custody," the jurisdictional hearing shall and must "be set for hearing within 15 judicial days from the date of the order of the court directing such detention." (Welf. & Inst. Code, § 657, subd. (a)(1), (2).) Once the juvenile court assumes jurisdiction and declares the minor a ward of the court under section 602, if the dispositional order removes the minor "from the physical custody of his or her parent or guardian . . . , 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." (§ 726, subd. (c).) This calculation of the maximum period of physical confinement should include an award of custody credit for time the minor has spent in physical confinement prior to commitment. (In re Eric J. (1979) 25 Cal.3d 522, 536.)
Unspecified section references are to the Welfare and Institutions Code.
In this case, minor Kimberly B. was already in custody as a ward of the juvenile court when a new section 602 petition was filed. The juvenile court denied minors motion to dismiss for failure to hold a jurisdictional hearing within 15 days of the filing of this new petition. After sustaining one of the charges, the court calculated a maximum period of confinement that rejected minors request for custody credit.
On appeal, minor asserts that the juvenile court violated her speedy trial rights by conducting an untimely jurisdictional hearing and that the court erred in not granting her custody credits for her juvenile hall confinement. Both contentions depend on the premise that minor was detained on the latest charges. For the reasons stated below, we will reject this premise and affirm the orders.
PRIOR PROCEEDINGS
Minor, born in August 1989, was declared a ward of the juvenile court on October 5, 2004, after she admitted a misdemeanor battery, as alleged in a section 602 petition. She was returned to her fathers custody subject to a number of probation conditions.
On February 1, 2005, a supplemental petition under section 777 was filed which charged minor with not regularly attending school, not completing public service work, and twice testing positive for marijuana. She was placed on an electronic monitoring program (EMP) at a detention hearing on February 22, 2005. At a hearing on March 15, 2005, the court found minor in violation of probation, continued her as a ward of the court, and returned her to her fathers custody.
On August 24, 2005, a second section 777 petition was filed which charged minor with repeatedly failing to report to the probation officer, failing to attend substance abuse counseling, and testing positive for marijuana twice and methamphetamine three times. Various studies ensued to determine a proper placement. She was accepted in juvenile Mental Health Court on October 6, 2005. She was returned to the EMP on October 12, 2005.
On November 1, 2005, a third section 777 petition was filed which charged minor with three more positive tests for methamphetamine. At a hearing on November 2, 2005, minor admitted the charges in the third petition. The second petition was dismissed without prejudice. Minor was detained in juvenile hall at the probation officers discretion while further investigations of placement alternatives ensued, including in-patient drug programs. Minor was released to the Thunder Road program on January 3, 2006. She completed this program on February 1, 2006. At a hearing on February 2, 2006, the court set aside and dismissed the third petition.
Minor began treatment with a family therapist on February 1, 2006, but she missed more appointments than she kept. Minor signed up for counseling for substance abuse. In the month of March 2006, she missed six of her eight scheduled sessions. On March 28, 2006, minor was placed in the Community Release Program. That was also the day she was scheduled to begin an independent studies school program.
It is unclear from the record whether this counseling was voluntary or at the direction of the probation officer, but minors attendance record was noted in supplemental probation reports.
At a probation review hearing on April 5, 2006, the court continued minor on probation. On April 12, 2006, she was "upgraded" to the EMP because she was disregarding her curfew. After that time, she was initially better about attending counseling sessions in a new program.
A supplemental probation report for the court hearing on May 10, 2006, stated in part that minor had various excuses for missing six of nine independent studies classes. "[T]he minor and another student were involved in a school altercation, at Palo Alto High School, on April 6, 2006." Minor claimed that the other individual provoked the fight. At the court hearing on May 10, 2006, she was continued on EMP.
On May 12, 2006, minor left her fathers residence without his permission to visit her mother. She returned on May 15, 2006. A request to arrest minor was submitted on May 15, 2006, but it was denied due to a high population in juvenile hall. She was taken into custody on May 31, 2006, while awaiting a court hearing that was then taken off calendar.
On June 1, 2006, a second 602 petition (the E petition) and a fourth section 777 petition (the F petition) were filed, both charging minor with removing the electronic monitor from May 4 through 7, 2006 (§ 871, subd. (d)). The section 777 petition also charged minor with probation violations of testing positive for cocaine once and amphetamine twice and with leaving her residence without authorization for three days. At a detention hearing on June 2, 2006, the E and F petitions were consolidated for purposes of a hearing on June 9. At a hearing on June 9, 2006, minor admitted the positive drug tests. After a contested hearing, the court sustained the charge in the F petition of an unauthorized absence and rejected the charges in the E and F petitions of tampering with the electronic monitor. The probation officer asked for two weeks to prepare dispositional recommendations. The case was set for a disposition hearing on the F petition on June 23, 2006. Minor remained in custody in juvenile hall.
The practice of the Santa Clara County Superior Court is to identify new petitions filed in the same pending juvenile case alphabetically. So, for example, the initial section 602 petition was labeled "3-04-JV-28449A," and the first section 777 petition was labeled "3-04-JV-28449B." We will adopt this terminology to occasionally refer by letter to the successive petitions in this case.
The California Supreme Court has explained the difference between petitions under sections 602 and 777 since the passage of Proposition 21 on March 7, 2000. InJohn L. v. Superior Court (2004) 33 Cal.4th 158, the California Supreme Court stated at page 165: "As we recently explained in In re Eddie M. (2003) 31 Cal.4th 480, 494-502, (Eddie M.), former section 777 could be used to find a new criminal violation by one already a probationer under section 602, and thus to increase the persons maximum term of juvenile confinement. Accordingly, case law established that the new misconduct adjudicated under former section 777 must be proved beyond a reasonable doubt by evidence competent in a criminal trial. (In re Arthur N. (1976) 16 Cal.3d 226, 234-240 (Arthur N.).)
"However, Proposition 21 prevents use of section 777[, subdivision] (a)(2) to produce new criminal adjudications and to thereby increase the maximum term of confinement for the original section 602 offense. Even if criminal in fact, new misconduct may be treated, under section 777[, subdivision] (a)(2), only as a probation violation. If a violation is found, the violator may, at most, receive a more restrictive juvenile placement within the original maximum term." Thus, to increase the maximum time of confinement, a new section 602 petition must be filed.
PROCEEDINGS INVOLVING CURRENT OFFENSE
The "school altercation" on April 6, 2006, resulted in the filing of a third section 602 petition (the G petition) on June 23, 2006, which charged minor with assaulting Karina C. by means of force likely to produce great bodily injury.
Due to the imminent filing of this new petition, the disposition hearing scheduled for June 23, 2006, was continued for one week. The court ordered the matters consolidated without objection from counsel. On June 30, 2006, the court scheduled a jurisdictional hearing on the G petition for July 11, 2006, and scheduled the disposition hearing on the F petition for July 12, 2006.
At the hearing on July 11, 2006, the People asked for a continuance on the basis that the victim, Karina, a special education student, and her mother, a teacher, were both busy with summer school, which was due to end soon. The prosecutor asserted, "technically Kimberly is out of custody on this case, and her first appearance was on June 23rd." The court responded, "She doesnt appear to be out of custody."
Minor argued that her out-of-custody status in the new case was a "legal fiction," as she had been in custody since the beginning of June. The prosecutor said, "Shes out of custody on this case. Shes in custody on other cases. Shes pending disposition on those tomorrow in Department 77. They were not consolidated." Minor asked for the case to be dismissed.
The court commented: "Well, Im certainly not inclined to do that. Im less than impressed, for the reasons given, for the continuance frankly because most people know that they are going to be teaching summer school a long time in advance and going to summer school too." The prosecutor noted the case had just been set. The court continued: "But presumably somebody knew they were going to be in summer school or the mother certainly knew she was going to be teaching summer school. So, you know, Im not terribly impressed with that. But it is the request that the continuance being asked is for less than two weeks, right?" The prosecutor calculated that the last day of a time-not-waived case would be Saturday, July 22, and asked for a continuance until July 24, 2006, which the court granted. The prosecutor announced intent to amend the G petition to add a charge of misdemeanor battery.
At the dispositional hearing on the F petition on July 12, 2006, the court pointed out that it seemed the matters were consolidated on June 23, 2006, but they were "unconsolidated" on June 30, 2006, when different hearings were set on different dates. The court rejected minors request to be released on EMP and continued the dispositional hearing until the G petition was heard on July 24, 2006. Minor asserted that it was a time-not-waived case.
On July 20, 2006, minor filed a motion to dismiss the case based on vindictive prosecution and a violation of her speedy trial rights. On July 24, 2006, an amended section 602 petition was filed adding a misdemeanor battery charge.
At the jurisdictional hearing on July 24, 2006, the court first heard and denied minors motion to dismiss. Then the court heard testimony about the latest offense. According to Karina, on April 6, 2006, minor repeatedly punched her forehead in the girls locker room at Karinas school, Palo Alto High. Minor approached Karina in the locker room after verbal confrontations at a nearby shopping center. Karina had not met minor before, but minor was with another girl named Somone. Karina and Somone were former friends who had fallen out and been criticizing each other over a boy. Somone had previously complained to the assistant principal of Palo Alto High about Karina taunting her. Minor knew Somone from being in an independent studies school program with her. According to minor and Somone, minor struck Karina once in self-defense. Karina swung at her after confronting Somone in the locker room.
At the continued jurisdictional hearing on July 25, 2006, the court dismissed the felony charge, finding it untrue, and found true the misdemeanor battery charge. The hearing proceeded to minors disposition. The court adopted the probation officers recommendations on the G petition and ordered placement in a residential drug program.
A discussion ensued about how to handle the pending F disposition. Minor initially asked for it to be dismissed. The court suggested it could be consolidated. The court stated that the maximum time on the new offense was one year. Minor pointed out that she had already been in custody for almost the maximum time on the F petition. The court commented, "So in order to get the maximum treatment, it would be better to credit for time served [sic], and p-t-o-r[] her on the F petition." Minor responded by asking to consolidate the petitions and give her credit for time served on the F petition. The prosecutor suggested immediately releasing minor on the F petition so she could earn credit for time served on the G petition. Minors counsel objected, stating:" She has not been technically remanded on this case, but has been feeling the effects of —"
"P-t-o-r" is apparently juvenile court shorthand for "probation to terminate upon release."
In order to obtain the maximum treatment for minor, on the pending F petition, the court awarded minor 154 days credit for time served, and ordered probation terminated upon her immediate release. The court officer initially recited that minor would receive 154 days of credit on the F petition and 33 days of credit on the G petition. Once the court explained that minor was getting one day on the G petition for being remanded that day, the court officer stated, "Ive never seen it done this way, Judge." The court denied minors request for credit on the G petition and again adopted the probation reports recommendation of placement in a residential drug program with a maximum period of confinement of one year.
I. Minors claim for custody credit
Minor asserts that since she "was awaiting disposition on the 777 petition, the minor was `not serving a term and was entitled to all precommitment credits starting from June 23, 2006" on the G petition. Minor relies on In re Ricky H. (1981) 30 Cal.3d 176.
"Penal Code section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but `only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted (subd. (b), italics added)." (People v. Bruner (1995) 9 Cal.4th 1178, 1180.) The California Supreme Court has refused to hold this statute directly applicable to juvenile court proceedings (In re Eric J., supra, 25 Cal.3d 522, 533-535), but it concluded that juveniles are entitled to precommitment credit for time spent in physical confinement based on a construction of section 726, subdivision (c). (In re Eric J., supra, 25 Cal.3d at p. 536.)
Section 726, subdivision (c) provides in pertinent part: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, 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.
"As used in this section and in Section 731, `maximum term of imprisonment means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.
"If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the `maximum term of imprisonment shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.
"If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the `maximum term of imprisonment is the longest term of imprisonment prescribed by law.
"`Physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority."
Although Penal Code section 2900.5 does not directly apply to juveniles, the California Supreme Court recognized in Ricky H. that juveniles, like adults, should receive credit only " `where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. " (In re Ricky H., supra, 30 Cal.3d at p. 185, quoting Pen. Code, § 2900.5.) The court concluded in Ricky H. that the minor was not entitled to credit for a detention that "obviously was not attributable to proceedings related to the" latest offense. (In re Ricky H., supra, at p. 185.)
In In re Gustavo M. (1989) 214 Cal.App.3d 1485, this court explained at page 1500: "A juvenile is entitled to credit for the time he was detained in juvenile hall pending resolution of charges against him. (In re Eric J.[, supra,] 25 Cal.3d 522, 536.) However, he is not entitled to precommitment credits for time spent in juvenile hall on an unrelated commitment. (In re Fausto S. (1985) 175 Cal.App.3d 909, 912.)" Because the record in that case was unclear, we remanded for the juvenile court to determine the basis for the minors precommitment custody.
Minor misstates the record in saying that "the court basically ordered the battery offense to run concurrent with the 777 petition." In fact, the court did the opposite. On July 25, 2006, at the very hearing that the court sustained the battery charge in the G petition, the court ordered minor released with probation terminated on the F petition, giving her credit for time served in that case.
In reply, minor asserts that she was detained in custody "when the juvenile court consolidated both petitions on June 23, 2006." She does not address the significance of the court separating the cases one week later on June 30, 2006. We see nothing in the temporary consolidation that required minors detention on the G petition.
When the G petition was filed on June 23, 2006, minor was already in custody pending disposition of the F petition, which had been sustained on June 9, 2006. Section 631 requires the release of a minor who has been taken into custody unless there is a detention hearing as soon as possible, but no later than "48 hours after having been taken into custody" "if the minor is not currently on probation or parole." (Id., subd. (b).) There was never a detention hearing on the G petition. The record reflects no order detaining minor on the G petition prior to July 25, 2006. Minor has not established that she would not have been restrained after June 23, 2006, but for the alleged battery. (Cf. People v. Bruner, supra, 9 Cal.4th 1178, 1193-1194.) Accordingly, the juvenile court properly denied minors request for credit for spending time in custody on the G petition.
II. Minors speedy trial motion
As indicated above, when a juvenile is "detained in custody," the jurisdictional hearing shall and must "be set for hearing within 15 judicial days from the date of the order of the court directing such detention." (§ 657, subd. (a)(1), (2).) This statute is echoed in California Rule of Court, rule 5.774 (formerly rule 1485): "(a) . . . If the child is not detained, the jurisdiction hearing on the petition must begin within 30 calendar days from the date the petition is filed. [¶] (b) If the child is detained, the jurisdiction hearing on the petition must begin within 15 judicial days from the date of the order of the court directing detention." A hearing may be continued beyond these time limits only upon a noticed motion establishing good cause. (§ 682; see Cal. Rules of Court, rule 5.776 (formerly rule 1486).) One purpose of these brief time limits in section 657 and related statutes such as section 631 is to preclude a minor languishing in custody without a judicial determination. (In re Robin M. (1978) 21 Cal.3d 337, 342-343; In re Angel M. (1997) 58 Cal.App.4th 1498, 1501.)
Section 657, subdivision (a) provides: "Upon the filing of the petition, the clerk of the juvenile court shall set the same for hearing within 30 days, except as follows:
"(1) In the case of a minor detained in custody at the time of the filing of the petition, the petition must be set for hearing within 15 judicial days from the date of the order of the court directing such detention.
"(2) In the case of a minor not before the juvenile court at the time of the filing of the petition and for whom a warrant of arrest has been issued pursuant to Section 663, the hearing on the petition shall be stayed until the minor is brought before the juvenile court on the warrant of arrest. The clerk of the juvenile court shall set the petition for hearing within 30 days of the minors initial appearance in juvenile court on the petition, except that in the case of a minor detained in custody, the petition shall be set for hearing within 15 judicial days from the date of the order of the court directing such detention."
By the terms of the statute, the 15-day time period commences when the minor is "detained in custody." We have already concluded above that, for the purpose of custody credits, minor was not detained on the G petition before July 25, 2006. The remaining question is whether "detained in custody" in section 657 means for any reason or as a result of the newly filed petition.
Although section 657 uses the general phrase "minor detained in custody," it seems apparent from the context that the phrase refers to a detention order related to a newly filed and unadjudicated petition. We find no precedent arising under section 657, but we find analogous the decision in Blake v. Superior Court (1980) 108 Cal.App.3d 244. That decision interpreted former language in Penal Code section 859b applicable to adult criminal proceedings which stated in part: " `In no instance shall the preliminary examination be continued beyond 10 court days from such arraignment or plea whenever the defendant is in custody at the time of such arraignment or plea and the defendant does not personally waive his right to preliminary examination within such 10 court days. " (Blake v. Superior Court, supra, 108 Cal.App.3d at p. 248.) The court reasoned: "Inasmuch as the purpose to be served by the mandatory 10-day time limit is to insure that those persons charged with felonies who are unable to post bail are not confined for more than 10 court days without a judicial determination of the existence of probable cause, the phrase `whenever the defendant is in custody as used in [Penal Code] section 859b must be applied only to those defendants in custodial confinement solely attributable to the charges which are the subject of the preliminary hearing." (Ibid., cited with approval by People v. Standish (2006) 38 Cal.4th 858, 867, fn. 2.) Since the defendant there was in custody by reason of a prior conviction and sentence, the court concluded that he was not "in custody" for purposes of the 10-day rule.
Penal Code section 859b third paragraph has been amended and currently states in pertinent part: "Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, and the defendant has remained in custody for 10 or more court days solely on that complaint" except in specified situations.
Similarly, we believe that it would not serve the purpose of section 657 to apply the shortened 15-day period to a minor who is already in custody because a prior petition has been sustained. In such a case, there has already been a judicial determination that continued custody is appropriate. As before, we conclude that minor was not detained in custody on the G petition prior to the jurisdictional finding on July 25, 2006. Since minor was not detained in custody, the applicable time for the jurisdictional hearing was 30 days, not 15, from the filing of the G petition on June 23, 2006. Minor does not contend that the hearing on Monday, July 24, 2006 was outside of this 30-day period (once the weekend is excluded under Code Civ. Proc., § 12a). We further conclude that the juvenile court did not err in denying minors motion to dismiss for a violation of her speedy trial rights.
In view of our conclusion that the jurisdictional hearing was held within the statutory time limits, we need not consider whether the trial court erred on July 11, 2006, in implicitly finding good cause to continue the jurisdiction hearing until July 24, 2006, and whether minor was prejudiced by this delay. (See In re Chuong D. (2006) 135 Cal.App.4th 1303, 1311.)
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Mihara, J.