Opinion
A158207
01-15-2020
In re K.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-01053)
K.H. (appellant) appeals from a June 2019 dispositional order committing him to county jail. His principal contentions are: (1) the juvenile court lacked authority to impose a county jail commitment; (2) the court erred by terminating probation unsuccessfully; and (3) he is entitled to additional custody credits.
We agree. We reverse and remand the matter for a new disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference our unpublished opinion in appellant's prior appeal, People v. Hudson (June 18, 2018, A147186). We recite only those facts relevant to the issues addressed on appeal.
In 2014, appellant, then 17 years old, participated in a physical altercation that severely injured the victim. A jury convicted appellant of assault with force likely to produce great bodily injury; he admitted personally inflicting great bodily injury. The court sentenced appellant to six years in prison. (People v. Hudson, supra, A147186.) Appellant appealed. We conditionally reversed the judgment and remanded to the juvenile court to conduct a transfer hearing pursuant to Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Cal. Const., art. I, § 32). (People v. Hudson, supra, A147186.)
On remand, the juvenile court determined appellant was a fit and proper subject for disposition in juvenile court. At the initial disposition hearing, the court adjudged appellant an indefinite ward and found he had been tried on probation and had failed to reform (Welf. & Inst. Code, § 726, subd. (a)(2)). The court committed appellant to the Division of Juvenile Justice (DJJ) for a maximum term of confinement of seven years, with credit for time served, and ordered him to serve no more than one year at DJJ. The DJJ declined to accept appellant. It determined one year was an insufficient amount of time to provide rehabilitative services.
Undesignated statutory references are to the Welfare and Institutions Code. The court declined to place appellant on probation with an ankle monitor, as the probation department requested.
This prompted the court to hold a second disposition hearing. At that disposition hearing—in June 2019—the court set aside the DJJ commitment and stated its intention to sentence appellant to one year in county jail. The court suggested that upon completion of jail time, appellant's probation would terminate unsuccessfully. Defense counsel responded: "[appellant] will take the year in the county jail." The June 2019 disposition order states "[u]pon completion of jail time, wardship and probation to terminate unsuccessfully." The disposition order does not award custody credits.
While this appeal was pending, the court released appellant on home supervision with an ankle monitor and vacated appellant's abstract of judgment and state prison commitment.
DISCUSSION
Appellant challenges the June 2019 disposition order on several grounds. His first claim is the jail commitment was unlawful. The Attorney General argues appellant forfeited this claim by agreeing to the jail time. We are not persuaded. The forfeiture rule does not apply if the disposition is unauthorized; that is, if it cannot " 'lawfully be imposed under any circumstance in the particular case.' " (In re Sheena K. (2007) 40 Cal.4th 875, 887.) The Attorney General acknowledges the jail commitment is unauthorized, and that "the parties cannot, by stipulation, create statutory authority where none exists." (In re Jose H. (2000) 77 Cal.App.4th 1090, 1099.) Addressing the claim on the merits, we agree with appellant. "[T]he juvenile court is not authorized to commit a ward to county jail." (Id. at p. 1099.) The disposition was "improper" (In re Ramon M. (2009) 178 Cal.App.4th 665, 673-674) and must be reversed.
Second, appellant claims the court erred by preemptively terminating probation unsuccessfully because he was "not on probation and therefore did not have an opportunity to establish a pattern of compliance with terms and conditions." He also suggests insufficient evidence supports the "unsuccessful[]" designation. The Attorney General offers no evidence or persuasive argument that appellant was on probation in June 2019. (People v. Abarca (2016) 2 Cal.App.5th 475, 480 [" 'appellate court is not required to examine undeveloped claims, nor to make arguments for parties' "].)
Even assuming for the sake of argument appellant was on probation at the time of the June 2019 disposition hearing, the Attorney General does not point to any evidence supporting the court's determination that appellant was "unsuccessful[]." In one sentence—unsupported by authority—the Attorney General states: "the disposition report concluded that appellant had failed to reform on probation . . . and that recommendation supported the court's finding." The page of the record cited by the Attorney General is a list of the probation department's recommendations. While a court may rely on a probation officer's recommendations, we fail to see how a list of recommendations—unsupported by evidence or analysis—can constitute substantial evidence appellant was unsuccessful on probation. A trial court abuses its discretion when its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Here, the court's decision to label appellant's probation as "unsuccessful[]" is unsupported by the evidence and, as a result, is an arbitrary decision. We modify the disposition order by striking the words "[u]pon completion of jail time . . . probation to terminate unsuccessfully."
The disposition report describes appellant's conduct while incarcerated. It is not clear whether the court relied on this information when characterizing appellant's probation performance as unsuccessful. In any event, the Attorney General does not argue this conduct constitutes evidence appellant was unsuccessful on probation.
Third, appellant argues—and the Attorney General concedes—he is entitled to 61 days of additional custody credits. (See In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067 [minors in juvenile delinquency proceedings are entitled to, and juvenile court must calculate, credit for time "spent in custody before the disposition hearing"].)
Appellant requests a restitution fine refund and an order directing the Attorney General to "clear" his adult record. Because the juvenile court did not rule on these requests, there is no order for us to review. We will not consider what was not presented to the juvenile court. Finally, we reject appellant's challenge to the seven-year maximum term of confinement because appellant acknowledges the term was "technically accurate based on the terms for the relevant offenses." (See § 726, subd. (d)(1) [term of confinement cannot exceed maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses].) Appellant's other claims have been considered and merit no further discussion.
We deny appellant's request for judicial notice of his California Department of Corrections and Rehabilitation "Offender Restitution Payment History" as unnecessary to the resolution of the appeal. --------
DISPOSITION
The judgment is reversed, and the matter is remanded for a new disposition order. At the disposition hearing, the court must: (1) vacate the commitment to county jail; (2) strike the words "[u]pon completion of jail time . . . probation to terminate unsuccessfully;" and (3) calculate and award custody credits.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Needham, J.