Opinion
F079457
06-16-2020
In re M.M, a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD070770)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. John P. Bianco, Judge. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Appellant M.M. was adjudged a ward of the juvenile court after he admitted several counts of a Welfare and Institutions Code section 602 petition. He contends the juvenile court abused its discretion and violated his right to due process when it denied his request to continue the disposition hearing for a fourth time. He also contends he is entitled to additional predisposition custody credits.
References to code sections are to the Welfare and Institutions Code unless otherwise specified.
We affirm the disposition order in all respects except for the calculation of predisposition custody credits. We remand the matter to the juvenile court to clarify the predisposition custody credits to which M.M. is entitled.
FACTUAL AND PROCEDURAL SUMMARY
On November 2, 2017, M.M. admitted to committing battery, two counts of resisting arrest, vandalism, and petty theft. At the disposition hearing, M.M. was adjudged a ward of the juvenile court and placed on probation.
On January 2, 2018, a section 777 petition was filed alleging M.M. violated probation by using marijuana and violating the terms of his home supervision. M.M. admitted the allegations and was again placed on probation.
Another section 777 petition was filed on April 26, 2018, alleging M.M. violated probation by using marijuana and illegal substances, and failed to obey curfew, his parents, and school rules. M.M. admitted these allegations and again was placed on probation.
On August 17, 2018, it was alleged again that M.M. had violated probation. M.M. admitted violating probation and again was placed on probation. Yet again on December 4, 2018, another section 777 petition was filed alleging M.M. violated probation and he admitted the violations.
A second section 602 petition was filed on December 17, 2018, alleging M.M. possessed alcohol on school property, in violation of Business and Professions Code section 25608, subdivision (a). M.M. admitted the allegation.
A disposition hearing on the second section 602 petition and the most recent section 777 petition was held on January 29, 2019. M.M. was placed on probation.
Another section 777 petition was filed on March 26, 2019, alleging M.M. violated probation. M.M. admitted violating probation on March 28, 2019. A disposition hearing was set for April 12, 2019. The hearing was continued to April 26, 2019, and the juvenile court allowed M.M. to be released on electronic monitoring and ordered him to take his prescribed medication.
At the April 26, 2019 continued disposition hearing, M.M. stated that his counselor had discussed with him an outpatient group for minors with depression to discuss their problems. The juvenile court continued the hearing to May 17, 2019, and directed M.M. to return with a letter from his counselor setting forth a plan for M.M. "to get ... on track." M.M. was warned that he needed to stay out of trouble, or he would be placed in custody.
By the date of the May 17, 2019 hearing, M.M. was in custody because he had cut off and smashed his electronic monitor. M.M. claimed voices told him to do it. M.M.'s counsel asked for the hearing to be continued so M.M. could undergo a psychological evaluation. Counsel represented M.M. had been evaluated for, but not diagnosed with, schizophrenia, but the medications and services M.M. had received were not working.
The juvenile court ordered that M.M. remain detained so he could be evaluated and continued the disposition hearing. It was anticipated that M.M. would meet with the psychiatrist for an evaluation on May 30, so the hearing was continued to June 7, 2019.
At the June 7, 2019 hearing, M.M.'s counsel was under the impression no evaluation had been done of M.M. The probation department represented that a mental health report had been filed that morning. The juvenile court trailed the matter in order to review the report.
The report was submitted by a licensed clinical mental health clinician. The report stated that M.M. had been diagnosed with anxiety and depression and prescribed medication. He had been seen 14 times by mental health services since being incarcerated. Zoloft was prescribed on May 16, 2019, but M.M. had refused to take it on that date. Although M.M. was responding well to the antidepressants, his counsel was not satisfied with the evaluation.
The juvenile court stated that M.M. had been afforded an opportunity to provide additional information to the juvenile court as to why probation's recommendation of a short-term program was not appropriate; no additional information was provided. The People highlighted M.M.'s repeated probation violations while out of custody and the apparent inability of his parents to exercise control over M.M.
The juvenile court asked probation to articulate what mental health services would be available to M.M. in the short-term program. The probation officer opined that all services in the community had been exhausted; M.M. had repeatedly failed to comply with the terms of probation while in the community. The short-term program would allow M.M. to continue to see a therapist, receive anger management counseling, and individual counseling.
The juvenile court opined that the structure of the short-term program would ensure M.M. continued to receive counseling and services and take prescribed medications. M.M.'s counsel requested a full report from a psychiatrist addressing possible schizophrenia. The juvenile court confirmed that a mental health evaluation could be completed while M.M. was in the short-term program.
The juvenile court noted there currently was no diagnosis of schizophrenia and ordered the mental health evaluation be completed. M.M. was ordered committed to the short-term program for 180 days. An interim review was scheduled for August 9, 2019.
M.M. appealed from the disposition order on June 19, 2019.
DISCUSSION
M.M. contends it was an abuse of discretion and a violation of his due process rights not to continue the disposition hearing in order to obtain a further mental health evaluation. He also contends he is entitled to additional predisposition custody credits.
I. No Abuse of Discretion
Section 741 provides that the juvenile court may order that the probation officer obtain the services of a mental health professional "as may be required to assist in determining the appropriate treatment of the minor." As we understand M.M.'s contention, he maintains the juvenile court should have continued the disposition hearing to obtain another mental health evaluation that specifically addressed his counsel's concern regarding schizophrenia.
An order made at a dispositional hearing is reviewed under the deferential abuse of discretion standard and all reasonable inferences are drawn in favor of the juvenile court's decision. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) "The trial court's decision whether or not to grant a continuance will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.] Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (In re Lawanda L. (1986) 178 Cal.App.3d 423, 428.)
At the outset, we reject M.M.'s claim of an abuse of discretion. The disposition hearing initially was scheduled for April 12, 2019; it was continued three times before the disposition hearing was held on June 7, 2019. During the nearly two-month delay, M.M. was in custody and evaluated by mental health professionals. He was seen by a mental health professional 14 times during this period and diagnosed with anxiety and depression. He was never diagnosed with schizophrenia, despite his claim that voices told him to cut off and smash his electronic monitor.
M.M. has failed to show that a further mental health examination would have assisted in determining a proper disposition. M.M. had failed numerous times to comply with the terms of probation, despite receiving services. He had made no progress toward rehabilitation while on probation in the custody of his parents. M.M. had been subjected to a mental health evaluation; a diagnosis made; and medication prescribed. The structure of the short-term program would ensure that M.M. continued to receive counseling and would take his prescribed medication. Furthermore, the juvenile court ordered that another mental health evaluation of M.M. be conducted while he was in the short-term program.
Therefore, M.M. did not establish good cause for a fourth continuance to conduct another mental health evaluation when one had recently been completed. Based on the totality of the circumstances, we conclude that the denial of a fourth continuance was not an abuse of discretion.
We also reject M.M.'s claim of a violation of due process rights because of the denial of a fourth continuance. There is no denial of due process if counsel had a sufficient opportunity to prepare. (People v. Alexander (2010) 49 Cal.4th 846, 935-936.) Counsel described M.M. as having symptoms of psychosis; the symptoms pointed to by counsel were present as of September 2018. This was months before the June 2019 disposition hearing. Disposition was initially scheduled for April 12, 2019, and counsel could have asked for a specific evaluation for schizophrenia at that time if counsel was not satisfied with prior mental health assessments. On May 17, 2019, after M.M. had failed at what would be his final chance to behave while released to the custody of his parents, counsel raised a concern about schizophrenia.
Counsel had ample opportunity to seek a specific evaluation for schizophrenia under section 741 prior to disposition. Moreover, there is no evidence that in the 14 mental health sessions attended by M.M. while in custody prior to disposition, the mental health professionals did not assess M.M. for schizophrenia. The evidence is that M.M. was not diagnosed as suffering from schizophrenia. Furthermore, M.M. has failed to explain how a further mental health assessment would alter the disposition. The mental health assessment under section 741 is to assist in determining appropriate treatment, and that assessment and appropriate treatment can occur while M.M. is in the short-term program.
II. Custody Credits
M.M. contends the juvenile court should have awarded additional predisposition custody credits and the matter should be remanded for a new calculation. The People agree M.M. is entitled to additional custody credits but that remand is not necessary.
Penal Code section 1237.1, which prohibits a criminal defendant from raising an error in the calculation of presentence custody credits on appeal unless he or she first presents such claim in the trial court, does not apply to juvenile proceedings. (In re Antwon R. (2001) 87 Cal.App.4th 348, 350-352.)
"If the minor is removed from the physical custody of his or her parent ... 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 ...." (§ 726, subd. (d)(1).) Physical confinement includes placement in juvenile hall. (In re J.M. (2009) 170 Cal.App.4th 1253, 1256.) Generally speaking, Penal Code section 2900.5, subdivision (a) entitles an adult offender to credit against his or her term of imprisonment for "all days" he or she spent in custody prior to sentencing. Although that statute deals with adults, not juveniles, the Supreme Court has determined juveniles are entitled to credit for all days of actual precommitment confinement against the maximum period of confinement time, in order to comply with section 726's mandate. (In re Eric J. (1979) 25 Cal.3d 522, 536; see In re Randy J. (1994) 22 Cal.App.4th 1497, 1503.)
Because Penal Code section 2900.5 speaks in terms of "days" and not "hours," any partial day is treated as a whole day. Accordingly, a sentencing court is required to award presentence credit for the day of sentencing, where the defendant has remained in custody between conviction and sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) It appears this rule is also applicable to juvenile proceedings (see In re Antwon R., supra, 87 Cal.App.4th at p. 352), and the People have included the day of the dispositional hearing in their calculation.
Subdivision (b) of Penal Code section 2900.5 permits credit to be awarded pursuant to that section "only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." The Supreme Court has extended this limitation to juvenile proceedings (In re Ricky H. (1981) 30 Cal.3d 176, 185), and we are bound to follow the decisions of our state's highest court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
The juvenile court awarded M.M. 134 days of predisposition custody credit at the hearing on June 7, 2019. M.M. argues, and the People agree, that the juvenile court miscalculated the custody credits. However, they disagree on the amount of the miscalculation. This claim is raised for the first time on appeal.
The accrual of custody credits under Penal Code section 2900.5 begins when the individual is processed into a custodial situation, such as a juvenile detention facility described in subdivision (a) of the statute, and not merely when the individual is taken into the custody of police. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919-920; accord, People v. Macklem (2007) 149 Cal.App.4th 674, 702.) --------
M.M. is entitled to custody credits for all days spent in custody, up to and including the date of the disposition hearing. The People maintain the probation report accurately reflected the predisposition credits to which M.M. was entitled as of the date of the report, April 10, 2019, however, the juvenile court should have updated the calculation to include an extra 24 days that M.M. was in custody after the preparation of the probation report and up to disposition.
The parties disagree on whether the calculation in the probation report is accurate and M.M. maintains there are discrepancies in the record that need to be resolved. He does not agree with the People's calculations. An appellate court may resolve presentence credit calculation issues if doing so will serve the interests of judicial economy. (People v. Jones (2000) 82 Cal.App.4th 485, 493.) However, disputes as to what days M.M. was in custody and what constitutes custody for purposes of awarding custody credits should be resolved in the first instance by the juvenile court, as it may require additional evidence or a resolution of factual matters.
The issue presented is not merely one of calculation but involves resolving disputed facts. Consequently, we will remand the matter for the juvenile court to clarify the number of predisposition custody credits to which M.M. is entitled.
DISPOSITION
The June 7, 2019 disposition order is affirmed except as to the award of predisposition custody credits. The matter is remanded for the juvenile court to clarify the number of days of predisposition custody credits to which M.M. is entitled.