Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. JJD063887. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
INTRODUCTION
T.A. was adjudged a ward of the court after it was found true that she had knowingly used force and violence on an executive officer, a violation of Penal Code section 69. T.A. raises three issues in this appeal. First, she contends it was an abuse of discretion for the juvenile court to deny her motion to reduce the offense to a misdemeanor. Second, she contends that because she was placed on probation and placed with her parents, it was error for the juvenile court to announce a maximum period of confinement. Third, she contends that if a maximum period of confinement is set, she should be awarded one day of presentence custody credit. We will conclude (1) there was no abuse of discretion in declining to reduce the offense to a misdemeanor; (2) announcing a maximum period of confinement was error; and (3) consequently, no presentence custody credit should be awarded.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On May 3, 2009, Visalia Police Officer Joshua Walsh was dispatched to a gas station after S.O. called to report she had spotted her minor daughter, T.A., who was a runaway, at the gas station. When Walsh arrived he made contact with S.O., who informed Walsh that T.A. was in the gas station restroom and was refusing to come out.
As Walsh was speaking with S.O., T.A. walked out and S.O. identified T.A. as her minor daughter. Walsh blocked T.A.’s path and told T.A. she needed to stop and talk with them. T.A. told Walsh he was “not her father.” S.O. told Walsh that T.A. often was disrespectful.
Walsh asked S.O. if she wanted T.A. to go to S.O.’s car so she could drive T.A. home. S.O. responded affirmatively. Walsh asked S.O. if she wanted help getting T.A. to the car; S.O. again responded affirmatively. T.A. stated she was not going anywhere with her mother and started to walk past Walsh. Walsh reached out and grabbed T.A.’s wrist; T.A. kicked Walsh in the upper right thigh and left knee.
Walsh put T.A. in a control hold and placed her in S.O.’s car, instructing T.A. to remain seated. Walsh was detaining T.A. while he talked to S.O. S.O. was concerned because in the home T.A. engaged in the type of behavior exhibited toward Walsh. S.O. wanted T.A. taken into custody. T.A. responded that she would rather go to jail than go home.
T.A. was handcuffed and placed in the back of the patrol vehicle. While Walsh was driving to the juvenile detention center, T.A. began kicking the back of Walsh’s seat. T.A. then lay on her side and began kicking the passenger window.
Walsh thought T.A. was going to kick out the window, so he advised dispatch he had to stop his vehicle and apply a leg restraint. While Walsh was applying the leg restraint, T.A. attempted to kick him. After the restraint was applied, T.A. slipped one foot out of her boot and was able to get out of the restraint. Walsh then took off T.A.’s other boot and reapplied the leg restraint.
As Walsh continued driving to the juvenile detention center, T.A. began repeatedly hitting the area between the front and back seats of the patrol vehicle with her handcuffs. After Walsh arrived at his destination, he opened the passenger door, removed T.A.’s leg restraint, and told her to step out of the vehicle. T.A. refused to step out unless Walsh allowed her to put on her boots. He refused because he was concerned T.A. would kick him in the face.
T.A. refused to come out of the vehicle, curled up into a ball, and scooted away from Walsh to the other side of the vehicle. When Walsh went around to the other side, T.A. scooted back. At that point, Walsh grabbed the cuff of T.A.’s pant leg and pulled her out feet first. T.A. became irate because she was in her socks and walking on a concrete floor. Walsh grabbed T.A.’s left arm and she resisted. T.A. began kicking Walsh multiple times on both of his legs.
Walsh restrained T.A. and led her to the detention cell area. T.A. tried to break free from Walsh’s grasp and kicked Walsh two more times. Walsh tried to reduce T.A.’s freedom of movement by holding her against a bench; T.A. dug her fingernails into his hand several times. Eventually, T.A. wore herself out.
Walsh’s legs were swollen and sore where he had been kicked. The soreness and swelling took weeks to dissipate.
On May 5, 2009, a Welfare and Institutions Code section 602 petition was filed alleging that T.A. knowingly used force and violence on an executive officer in the course of his duties, a felony violation of Penal Code section 69. T.A. failed to appear at the detention hearing, and the juvenile court issued a bench warrant. On May 22, T.A. surrendered on the warrant and denied the allegations of the petition.
On July 21, 2009, T.A. moved the juvenile court to reduce her offense to a misdemeanor. The motion alleged that T.A.’s conduct was not serious or felonious and that T.A. should have been charged instead with misdemeanor resisting arrest or battery. On July 28, at the conclusion of the jurisdictional hearing, the juvenile court heard argument on the motion, ultimately denying it.
At the August 26, 2009, dispositional hearing, T.A. again asked the juvenile court to reduce her offense to a misdemeanor. T.A. argued that she was a good student, had a good relationship with her mother, and was embarrassed by the incident. The juvenile court stated T.A.’s behavior was egregious, the charge would remain a felony, and only the lack of any prior record was keeping the juvenile court from placing T.A. in a custodial setting.
The juvenile court subsequently declared T.A. a ward of the court, placed her with her parents while on probation, and ordered T.A. to write a letter of apology to Walsh, attend anger management counseling, and perform 80 hours of community service.
DISCUSSION
T.A. contends the juvenile court abused its discretion when it declined to reduce her offense to a misdemeanor. She also challenges as error the juvenile court’s pronouncement of a maximum period of confinement; the People concede this point. Finally, T.A. maintains that if a maximum period of confinement is announced, she should be awarded one day of presentence custody credit.
I. No Abuse of Discretion
Section 69 is an offense that may be treated either as a felony or a misdemeanor at the time of sentencing. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) Therefore, the juvenile court had to declare the offense to be a felony or misdemeanor. (Welf. & Inst. Code, § 702; see also Pen. Code, § 17, subd. (d).)
In T.A.’s case, she twice asked the juvenile court to declare the offense a misdemeanor and twice her request was denied. The juvenile court’s denial of the request to treat the offense as a misdemeanor is reviewed for abuse of discretion. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207; People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978 (Alvarez).) “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.’ [Citation.]” (Alvarez, at p. 977.)
T.A. contends that because she was a good student with no prior delinquency record and her actions were akin to a young person “throwing a tantrum,” the juvenile court abused its discretion in refusing to treat the offense as a misdemeanor. We disagree.
T.A. kicked Walsh at least seven times in the knee, shin, and thigh. She dug her fingernails into the flesh of his hand. The attacks were painful and caused soreness and swelling that took weeks to heal. The juvenile court stated T.A.’s “level of resistance throughout, from the beginning to the very end, was extremely egregious.” In making its determination, the juvenile court noted T.A.’s lack of a prior delinquency record and her status as a good student. The juvenile court stated that these factors were the only reason T.A. was not placed in a custodial setting at disposition.
The juvenile court took into account the nature of the offense and T.A.’s lack of any prior record in balancing the punishment and rehabilitative purposes of the law. (Welf. & Inst. Code, § 202, subd. (b); In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) Although the juvenile court denied the requests to reduce the offense to a misdemeanor, the disposition provided for probation with various rehabilitative conditions.
Neither Alvarez, supra, 14 Cal.4th 968 nor People v. Miller (1981) 120 Cal.App.3d 233 supports T.A.’s contention that the trial court abused its discretion. In Alvarez, the trial court’s discretionary determination in a three strikes case was held not an abuse of discretion. (Alvarez, at pp. 980-981.) The Miller case did not address a discretionary determination by a trial court; rather, it addressed the requirement to instruct the jury properly. (Miller, at pp. 235-236.)
T.A. has failed to demonstrate that the juvenile court acted arbitrarily or irrationally in making its determination. Therefore, we conclude the juvenile court did not abuse its discretion.
II. Confinement and Credit
T.A. contends, and the People concede, the juvenile court erred when it pronounced a maximum period of confinement at disposition, while simultaneously placing her with her parents and releasing her on probation. T.A. asks that the erroneous language be stricken; the People ask that it be declared of no force and effect.
The case of In re Ali A. (2006) 139 Cal.App.4th 569, cited by the People, addresses the question of whether a juvenile court has the discretion to set a maximum period of confinement when the minor is committed to the custody of his or her parents subject to probation. The Third District Court of Appeal held that the juvenile court is not required to determine a maximum period of confinement when probation is the disposition and any statement to that effect in the dispositional order when probation is granted is “of no legal effect.” (Id. at p. 574.) Although noting that if probation were to be violated at some point in the future and a modified disposition ordered in which the maximum period of confinement would have to be addressed at that time, the appellate court declined to strike the language regarding a maximum period of confinement in a disposition ordering probation. (Ibid. & fn. 2.)
T.A. cites the case of In re Matthew A. (2008) 165 Cal.App.4th 537, issued by Division Eight of the Second Appellate District two years later, to support her request the language on a maximum period of confinement be stricken. In Matthew A. the appellate court noted that juvenile courts often had continued to include a pronouncement of a maximum period of confinement in a dispositional order, even when the minor was committed to the custody of his or her parents and placed on probation. (Id. at p. 541.) The appellate court concluded that the juvenile court’s practice of including a maximum period of confinement in these types of dispositional orders should cease, and that language in prior appellate opinions deeming the language in the dispositional order to be of no force and effect had done little to stem the practice. Therefore, the Matthew A. appellate court held that the language specifying a maximum period of confinement, when no such period is authorized to be set, should be stricken. (Ibid.)
Interestingly, neither the People nor T.A. seems to have noticed that although the juvenile court verbally stated at the dispositional hearing that the maximum period of confinement for the offense would be three years, the written dispositional order contains no such statement. However, when there is a discrepancy between an oral pronouncement and the written judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We therefore address the issue.
We see no point in continuing to include in the dispositional order language regarding a maximum period of confinement when the juvenile court was not empowered to make such a determination because T.A. was placed on probation and in the custody of her parents. Therefore, we will strike the language in T.A.’s disposition that included a pronouncement of a maximum period of confinement. If T.A. violates probation, and if she is removed from the custody of her parents, then a modified disposition must be ordered, at which time a maximum period of confinement must be determined. (Welf. & Inst. Code, § 726, subd. (c).)
Because we are striking any reference to a maximum period of confinement from T.A.’s disposition, we need not address her request that we award her one day of presentence custody credit if this language remains in the disposition.
DISPOSITION
Any language pertaining to a maximum period of confinement is stricken. In all other respects the dispositional order is affirmed.