Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J206044 Francis M. Devaney, Judge.
IRION, J.
Between 2005 and 2006, Patrice S. entered negotiated admissions to falsely identifying herself to a peace officer (Pen. Code, § 148.9), resisting a public officer (Pen. Code, § 148, subd. (a)(1)), both misdemeanors, and fleeing a peace officer while driving in willful and wanton disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)), a felony. In 2007, the court committed Patrice to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). It set the maximum period of confinement at three years eight months and ordered AIDS testing. Patrice appeals, contending the maximum period of confinement is three years six months; the court erred by ordering AIDS testing; and her commitment to DJJ was unlawful. The People concede the first point and request that the case be remanded for the court to determine: (1) whether the facts of this case support AIDS testing pursuant to Health and Safety Code section 121060; and (2) whether to recall the commitment order. Appellant consents to a remand. We accept the People's concession and remand the case.
FACTS
In June 2004, Patrice S. stole a purse from a stroller while the victim was in a restroom stall. A petition (Welf. & Inst. Code, § 602) filed in October alleged one count of misdemeanor petty theft (Pen. Code, § 484). In November, Patrice admitted the allegation. The juvenile court entered a true finding and committed her to the Breaking Cycles program, followed by placement with her mother.
In May 2005, Patrice got into a car with a male driver. When the police stopped the car, she got out with her breast exposed and gave the police a false name and birth date. A petition filed in June 2005 alleged one count of loitering with intent to commit prostitution (Pen. Code, § 653.22, subd. (a)) and a second count of giving false identification to a peace officer, both misdemeanors. In June, Patrice entered a negotiated admission to the second count and the court dismissed the first count with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The court stayed a commitment to Breaking Cycles and detained Patrice with her mother with home supervision. It dismissed the October 2004 petition.
In September 2005, plainclothes police officers saw Patrice in an area known for prostitution, apparently watching passing vehicles. She gave them a false name and ran when the officers tried to put her hands behind her back. A petition alleged one count of loitering with intent to commit prostitution, one count of giving false identification to a peace officer, and one count of resisting a public officer. Patrice entered a negotiated admission to the third count. The court dismissed the remaining counts with a Harvey waiver. It committed Patrice to Breaking Cycles, followed by placement with her mother.
In June 2006, while driving a stolen car, Patrice ran two stop signs and reached a speed of 65 miles per hour while fleeing pursuing police officers. The chase ended when she crashed into a garage, destroying it and damaging a car parked inside. A petition alleged one count of fleeing a peace officer while driving in willful and wanton disregard for the safety of persons and property, one count of unlawfully driving and taking a vehicle (Veh. Code, § 10851, subd. (a)) and one count of maliciously damaging property (Pen. Code, § 594, subds. (a), (b) (1))—all felonies. Patrice entered a negotiated admission to the first count and the court dismissed the remaining counts with a Harvey waiver. In July, the court detained her in juvenile hall pending a commitment to Breaking Cycles, followed by placement with her mother.
In November 2006, Patrice absconded from her placement. The court ordered Patrice detained in juvenile hall and extended her Breaking Cycles commitment, to be followed by home placement. In December, Patrice again absconded from her placement. In January 2007, the court ordered her detained in juvenile hall, then transported to a day program and placed with her mother. Later that month, Patrice absconded from her placement. In May, she was arrested in Los Angeles County and taken to San Diego County Juvenile Hall.
In June 2007, the court committed Patrice to DJJ. It set the maximum period of confinement at three years eight months and ordered AIDS testing pursuant to Penal Code section 1202.1.
DISCUSSION
I
The Maximum Period of Confinement Must Be Reduced to Three Years Six Months
Patrice contends the maximum period of confinement is three years six months. The People properly concede the point.
In calculating the maximum period of confinement, the court included time attributable to the misdemeanor petty theft alleged in the October 2004 petition, although that petition had been dismissed. The maximum period of confinement was three years six months: three years for fleeing a peace officer (Pen. Code, § 18), two months (one-third the maximum term) for giving false identification to a peace officer (Pen. Code, § 19), and four months (one-third the maximum term) for resisting an officer (Pen. Code, § 148, subd. (a)(1)). (Welf. & Inst. Code, § 726, subd. (c); In re Eric J. (1979) 25 Cal.3d 522, 536-538; In re David H. (2003) 106 Cal.App.4th 1131, 1136.) We modify the commitment order accordingly.
II
The Case Must Be Remanded for a Determination Whether There Is Probable Cause for AIDS Testing
In her opening brief, Patrice contends because there is no statutory basis for the AIDS testing order, the order must be vacated. The People assert Health and Safety Code section 121060 provides a basis for the order, and contend the case should be remanded for a finding of probable cause to support the testing. Patrice consents to a remand for this purpose.
Penal Code section 1202.1, the stated basis for the juvenile court's testing order, does not apply in the instant case because there was no true finding of one of the listed sexual offenses. (Pen. Code, § 1202.1, subds. (a), (e).) Health and Safety Code section 121060, however, provides for a blood test where the petition alleges "the . . . minor interfered with the official duties of a peace officer . . . by biting, scratching, spitting, or transferring blood or other bodily fluids on, upon, or through the skin or membranes of a peace officer" and there is probable cause "to believe that a possible transfer of blood, saliva, semen, or other bodily fluid took place." Sweat is a "bodily fluid" (People v. Hall (2002) 101 Cal.App.4th 1009, 1020-1021) and Health and Safety Code section 121060 applies to a true finding of resisting a public officer (People v. Hall, supra, 101 Cal.App.4th at p. 1019). The proper remedy is to remand for a determination of probable cause. (People v. Butler (2003) 31 Cal.4th 1119, 1129; see People v. Hall, supra, 101 Cal.App.4th at pp. 1017, 1023-1025.)
III
The Case Must Be Remanded for the Juvenile Court to Make a Discretionary Determination Whether the DJJ Commitment Should Be Recalled
In her supplemental opening brief, Patrice contends her DJJ commitment was unlawful pursuant to Welfare and Institutions Code section 733, and states she has asked the juvenile court to recall the commitment pursuant to Welfare and Institutions Code section 731.1. The People request the case be remanded to allow the juvenile court to determine whether to recall the commitment order. Patrice consents to a remand for this purpose.
Patrice requests this court order the remittitur to issue immediately. We cannot do so, as there is no such stipulation by the parties. (Cal. Rules of Court, rule 8.272(c)(1).)
As relevant here, Welfare and Institutions Code section 733 precludes a DJJ commitment for a minor whose most recent true finding is for an offense not listed in Welfare and Institutions Code section 707, subdivision (b). (Welf. & Inst. Code, § 733, subd. (c).) The effective date of Welfare and Institutions Code section 733, subdivision (c) postdated Patrice's DJJ commitment. The juvenile court has discretion to recall the commitment, however, and we remand for the court to make a determination whether the commitment should be recalled. (Welf. & Inst. Code, § 731.1.)
DISPOSITION
The order committing Patrice to DJJ is modified to reflect a maximum period of confinement of three years six months. The case is remanded to the juvenile court so that it may make a discretionary determination whether the DJJ commitment should be recalled. The order requiring Patrice to submit to AIDS testing is reversed. Should the prosecutor request a hearing on the issue within 30 days of the filing of the remittitur, the juvenile court shall conduct a hearing to determine whether there is probable cause for testing within the meaning of Health and Safety Code section 121060. In all other respects the judgment is affirmed. The juvenile court shall amend the commitment order and forward a copy to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice.
WE CONCUR: BENKE, Acting P. J., HALLER, J.