Filed 2/27/13 In re Michael P. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re MICHAEL P., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,                                                                             F064438

         Plaintiff and Respondent,                                           (Super. Ct. No. 506734)

                   v.
                                                                                     OPINION
MICHAEL P.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Nan
Cohan Jacobs, Judge.
         Kelly Lynn Babineau, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Gomes, J. and Peña, J.
       On June 2, 2009, appellant, Michael P., a minor, was adjudicated of committing a
felony violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon
or by means of force likely to cause great bodily injury). On November 5, 2009, the
juvenile court ordered appellant committed to the Department of Corrections and
Rehabilitation, Division of Juvenile Justice (DJJ), and declared his maximum term of
physical confinement (Welf. & Inst. Code, § 731, subd. (c))1 (MTPC) to be four years
four months, based on the instant offense and another offense adjudicated in a prior
wardship proceeding, less 267 days of custody credit. By a document filed December 23,
2011, the Stanislaus County Probation Department notified the juvenile court that
appellant was discharged from the jurisdiction of DJJ on December 14, 2011, and
requested that the court recall the DJJ commitment and return appellant to probation
status.2 On December 28, 2011, the juvenile court recalled appellant’s DJJ commitment
and placed him on probation, with various terms and conditions. At a subsequent hearing
on February 10, 2012, the court determined appellant’s probationary period to be 16.3
months, which it calculated by crediting appellant with 31.7 months (951 days) in
custody against a total term of 48 months.
       Appellant’s sole contention on appeal is that the court erred in setting his
probationary period. Specifically, appellant argues the court should have determined the
probationary period by awarding him 1,542 days (51.4 months) against a total term of 52
months, for a total probationary period of .6 months. We reject appellant’s argument, but
find other error and remand for further proceedings.


1      Except as otherwise indicated, all further statutory references are to the Welfare
and Institutions Code. We refer to section 731, subdivision (c) as section 731(c).
2      As set forth in more detail below, appellant had been placed, and on several
occasions following violations of probation, continued on probation, prior to being
committed to DJJ.


                                             2
                                         DISCUSSION
       This case concerns the application of recently enacted section 1766.01. Under that
statute, where a minor has been committed to DJJ, the Juvenile Parole Board (the Board)
may “discharge[] [the minor] from the jurisdiction of [DJJ] and permit[] his or her liberty
under supervision of probation and subject to the jurisdiction of the committing court
pursuant to [section 1766.01,] subdivision (c).” (§ 1766.01, subd. (b)(1).) Subdivision
(c) of section 1766.01 provides, in relevant part, as follows: “The county of commitment
shall supervise the reentry of any ward still subject to the court’s jurisdiction and
discharged from the jurisdiction of [DJJ].” (§ 1766.01, subd. (c)(1).) The juvenile court
of the county of commitment must conduct a “reentry disposition hearing,” the purpose
of which is to allow the court to “identify those conditions of supervision that are
appropriate under all the circumstances of the case and consistent with evidence-based
practices.” (§ 1766.01, subd. (c)(6).)
       As indicated above, the Board discharged appellant from DJJ, and the juvenile
court, following a reentry disposition hearing, placed appellant on probation. And, as
also indicated above, the issue on appeal concerns the length of the period of probation
supervision to which appellant is subject. Thus, we must answer the question: For a
minor discharged from DJJ pursuant to section 1766.01 and returned to the county of
commitment for probation supervision, what is the standard for determining the length of
the period of such supervision? Once this question has been answered, the next question
is whether the court correctly applied the applicable standard.
       As we explain below, we conclude as follows: Under section 1766.01, a court
must determine a ward’s probationary period following discharge in the same manner it
determines a ward’s MTPC when it orders a ward committed to DJJ, i.e., by applying
section 731. This is a two-step process in which the juvenile court first determines the
maximum period an adult could be imprisoned for the same offense(s) for which the

                                              3
minor was committed to DJJ. This sets the outside limit of the minor’s period of
confinement. The court then proceeds to the second step in which the court determines
the ward’s “maximum term of the physical confinement” (§ 731(c)), in the exercise of its
discretion, upon consideration of the facts and circumstances of the offenses for which
the minor is being committed. The MTPC may not exceed, and may be less than, the
maximum period of imprisonment calculated in the first step of the analysis. Here, it is
apparent that the court did not employ the analysis summarized above. Moreover, the
record does not preclude the possibility that had the court done so, it would have, in the
exercise of its discretion, arrived at a probation period less than the one it imposed.
Because it appears the court was not aware of the scope of its discretion, the appropriate
disposition is to reverse the probationary period set by the court and remand to allow the
court to set the probationary period utilizing the proper standard.
       We turn now to our explanation of these conclusions. To do so, we first explain
why we apply the section 731 two-step analysis, and then we explain the correct
application of this analysis to the instant case.
Why Section 731 Applies
       Although section 1766.01 provides that a minor’s supervision on probation
following discharge from DJJ is subject to the committing court’s jurisdiction pursuant to
subdivision (c) of section 1766.01, the statute is silent on the permissible length of the
probationary period. However, an uncodified section of the legislation by which section
1766.01 was enacted provides, in relevant part: “It is ... the intent of Legislature that,
upon their discharge from state jurisdiction, court jurisdiction over these wards be
continued for a total period of time not exceeding the maximum periods of time set forth
in Section 731 of the Welfare and Institutions Code.” (Stats. 2010, ch. 729, § 25,
p. 5098.) Given this statement of legislative intent, we interpret section 1766.01 to



                                               4
require that the juvenile court utilize section 731(c) in determining the length of the
probationary period for a minor discharged pursuant to section 1766.01.
How Section 731 Applies
       Section 731 provides, inter alia, that a juvenile court may order a minor
adjudicated of any of certain enumerated offenses committed to DJJ, and contains the
following provisions regarding the maximum periods of such commitments: “A ward
committed to [DJJ] may not be held in physical confinement for a period of time in
excess of the maximum period of imprisonment that could be imposed upon an adult
convicted of the offense or offenses that brought or continued the minor under the
jurisdiction of the juvenile court. A ward committed to [DJJ] also may not be held in
physical confinement for a period of time in excess of the maximum term of physical
confinement set by the court based upon the facts and circumstances of the matter or
matters that brought or continued the ward under the jurisdiction of the juvenile court,
which may not exceed the maximum period of adult confinement as determined pursuant
to this section.” (§ 731(c).)
       Thus, section 731 provides that a juvenile court must make two distinct
determinations regarding maximum time periods when committing a minor to DJJ. (In re
Carlos E. (2005) 127 Cal.App.4th 1529, 1539 (Carlos E.).) First, the court must
determine the “maximum period of imprisonment” for an adult convicted of the same
offenses for which the minor is being committed to DJJ. (§ 731(c).) Next, the court must
set a “maximum term of physical confinement” in DJJ. (Ibid.) In making this second
determination, the court must exercise its discretion, “based upon the facts and
circumstances of the matter ... that brought ... the ward under the jurisdiction of the
juvenile court.” (Ibid.) This maximum may not be more than the section 731(c)
“maximum period of imprisonment” for an adult as determined first, but it may be less.



                                              5
(Carlos E., at p. 1542.) The court is “[not] restrict[ed]” to the “adult sentencing triad.”
(Ibid.)
          Thus, we must first make the first of the two determinations required by section
731, and answer the following question: What is the section 731(c) “maximum period of
imprisonment” for an adult convicted of the offenses for which appellant was committed
to DJJ, viz., felony aggravated assault in violation of Penal Code section 245, subdivision
(a)(1) and annoying or molesting a child under age 18 (Pen. Code, § 647.6), a
misdemeanor?
          Section 726 provides part of the answer. That statute provides that when a
juvenile court “remove[s] [a minor] from the physical custody of his or her parent,” the
court must declare the maximum period the minor can be held in “physical confinement,”
which period may not exceed “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).) Further, and
most relevant for our purposes, the statute defines “maximum term of imprisonment” for
purposes of section 726 and section 731. (§ 726, subd. (c).)3 Specifically, section 726,
subdivision (c) provides: “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....” (§ 726, subd. (c).) Under Penal Code section
1170.1, a sentence for multiple felonies comprises the “principal” term, “subordinate”
term, and any additional term imposed for applicable enhancements. The principal term

3     The phrase “maximum term of imprisonment” does not appear in section 731.
Rather, the term used in section 731 is “maximum period of imprisonment.” It is
apparent that the two terms, although differing in one word, mean the same thing.


                                               6
consists of the greatest term of imprisonment imposed by the court for any of the crimes.
(Pen. Code, § 1170.1, subd. (a).) The subordinate term for each consecutive offense
consists of one-third of the middle term of imprisonment prescribed for each other felony
conviction. (Ibid.) Subordinate misdemeanor terms are calculated as one-third of the
maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538 (Eric J.).)
       When we apply the foregoing principles to the instant case, the “maximum period
of imprisonment” (§ 731(c)) consists of four years on appellant’s adjudication of
aggravated assault (Pen. Code, § 245, subd. (a)(1) [four years is maximum term]) plus
four months on appellant’s misdemeanor adjudication (Pen. Code, § 647.6 [one-year
maximum term]; Eric J., supra, 25 Cal.3d at pp. 536-538 [misdemeanor terms calculated
as one-third of maximum]).
       Our inquiry does not end here however. The final step in determining appellant’s
section 731(c) “maximum period of imprisonment” is to subtract from the period
calculated above the correct number of days of time in custody for which appellant is to
be credited. (Cf. Eric J., supra, 25 Cal.3d at p. 536.) In order to determine appellant’s
custody credits, we must first summarize the relevant background, viz., the offenses of
which appellant stands adjudicated and the time he spent in custody prior to his discharge
from DJJ.
Appellant’s Offenses
       Appellant stands adjudicated of five offenses. He was initially adjudged a ward of
the court on January 7, 2004, when he was 12 years old, following his admission that he
committed a violation of Penal Code section 647.6 (annoying or molesting a child under
age 18), a misdemeanor. The court placed appellant on probation.
       Subsequently, appellant was readjudged a ward as follows: On March 4, 2005,
based on his admission of his second offense, unlawfully causing fire to property (Pen.
Code, § 452, subd. (d)), a misdemeanor; on August 31, 2006, based on his admission of

                                             7
his third offense, second degree burglary (Pen. Code, §§ 459, 460, subd. (b)); and on
November 21, 2007, based on his admission of his fourth offense, misdemeanor
vandalism (Pen. Code, § 594, subd. (b)(1)). In each of these three instances, he was
continued on probation.
       Finally, as indicated earlier, appellant was ordered committed to DJJ following his
admission of committing a felony violation of Penal Code section 245, subdivision (a)(1),
his fifth offense. The court declared appellant’s MTPC to be four years four months,
consisting of four years based on only two of his offenses, viz., his 2009 felony
aggravated assault adjudication and four months on his 2004 misdemeanor adjudication,
less 267 days of custody credit. We refer to these two offenses collectively as the
commitment offenses. The court did not include in appellant’s MTPC time for any of
appellant’s other offenses.
Periods of Confinement
       Between June 2004 and August 2008 appellant committed at least six noncriminal
violations of probation.
       A juvenile hall detention log (detention log), considered by the court at the reentry
disposition hearing, shows that after suffering his first adjudication—for violating Penal
Code section 647.6—and being placed on probation, appellant was in custody for three
separate periods totaling 37 days—June 7, 2004, through June 18, 2004; June 29, 2004,
through July 1, 2004; and August 11, 2004, through August 13, 2004—prior to
committing his second offense. Thereafter, based on his second offense, he was confined
in juvenile hall from February 18, 2005, through March 8, 2005, a period of 19 days.
       As indicated above, appellant was continued on probation following his second
adjudication, and thereafter, as a result of probation violations, he was confined in
juvenile hall for the following periods: 31 days, from March 21, 2005, through April 20,



                                             8
2005; 52 days, from September 28, 2005, through November 18, 2005; and 120 days,
from January 27, 2006, through May 26, 2006.
       The petition alleging appellant’s third offense was filed July 21, 2006, and he
admitted the allegation on August 31, 2006. He was subsequently confined in juvenile
hall from September 6, 2006, through February 6, 2007, a period of 154 days.
       Appellant was again taken into custody on October 19, 2007, and on November 6,
2007, he admitted allegations that he committed misdemeanor vandalism—his fourth
offense—and that he violated his probation in all previous cases. He was confined in
juvenile hall from October 19, 2007, through November 21, 2007, a period of 34 days.4
       He was again taken into custody on April 14, 2008, and on April 16, 2008, he
admitted violating his probation in all previous cases. He was confined in juvenile hall
from April 14, 2008, through May 2, 2008, a period of 19 days.
       Appellant was taken into custody on July 29, 2008, and a petition alleging a
noncriminal violation of probation in all previous cases was filed the next day. The
minor admitted the allegations on July 31, 2008, and on August 14, 2008, the court
ordered appellant to serve 329 days in juvenile hall.
       Appellant was serving that term when, on May 16, 2009, he committed his fifth
offense. He was ordered committed to DJJ on November 5, 2009, and was transported to
DJJ on December 23, 2009, where he remained through December 28, 2011. From July
29, 2008, through December 28, 2011, appellant was confined, either in juvenile hall or
DJJ, for a period of 1,248 days.5
       Appellant’s total confinement time, in juvenile hall and DJJ, prior to release from
DJJ, was 1,715 days.


4      The detention log incorrectly states this period totaled 33 days.
5      The detention log indicates, incorrectly, this period consists of 1,247 days.


                                             9
Analysis
       Two important points emerge from the foregoing summary: (1) some of
appellant’s time in custody, viz., his first 37 days in custody for probation violation
following his first adjudication and prior to the commission of his second offense, and all
days of DJJ confinement, are attributable solely to one or both of the commitment
offenses; and (2) the remainder of his custody time is attributable, at least in part, to his
other offenses.
       In determining to what extent appellant’s “maximum period of imprisonment”
(§ 731(c)) must be reduced for time in custody where some of that time is attributable, at
least in part, to offenses other than the commitment offenses, we are guided by our
Supreme Court’s decision in People v. Bruner (1995) 9 Cal.4th 1178 (Bruner). In that
case, the court held that “where [an adult offender’s] period of presentence custody stems
from multiple, unrelated incidents of misconduct, such custody may not be credited
against a subsequent formal term of incarceration if the prisoner has not shown that the
conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier
restraint.” (Id. at pp. 1193-1194.) Rather, as “a general rule ... a prisoner is not entitled
to credit for presentence confinement unless he shows that the conduct which led to his
conviction was the sole reason for his loss of liberty during the presentence period.” (Id.
at p. 1191.)
       The court based this rule of “‘strict causation’” (Bruner, supra, 9 Cal.4th at p.
1192) on Penal Code section 2900.5, which “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).” (Bruner, at p. 1180.) The court held that this statute “did not
intend to allow credit for a period of presentence restraint unless the conduct leading to

                                              10
the sentence was the true and only unavoidable basis for the earlier custody.” (Id. at p.
1192.) The defendant in Bruner was not entitled to presentence credits, the court held,
“[b]ecause defendant has not shown that he could have been free during any period of his
presentence custody but for the same conduct that led to the instant conviction and
sentence....” (Id. at p. 1195.)
       The California Supreme Court has refused to hold this statute directly applicable
to juvenile court proceedings (Eric J., supra, 25 Cal.3d at pp. 533-535), although it
concluded that juveniles are entitled to precommitment credit for time spent in physical
confinement based on a construction of section 726, subdivision (c). (Eric J., supra, 25
Cal.3d at p. 536.) However, although Penal Code section 2900.5 does not directly apply
to juveniles, the California Supreme Court recognized in In re Ricky H. (1981) 30 Cal.3d
176 (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.’” (Id. 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. (Ricky H., at
p. 185.) And, in In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1500 (Gustavo M.), the
court explained: “A juvenile is entitled to credit for the time he was detained in juvenile
hall pending resolution of charges against him. (... Eric J. [, supra,] 25 Cal.3d [at p.]
536.) However, he is not entitled to precommitment credits for time spent in juvenile hall
on an unrelated commitment.”
       We conclude that, as suggested by Ricky H. and Gustavo M., the Bruner approach
is applicable here. And, when we examine the record and apply Bruner to the instant
case, two salient points emerge. First, the detention log shows appellant was in custody
in juvenile hall for violating his probation in his first case for three separate periods
totaling 37 days, before he was taken into custody on February 18, 2005, for the conduct

                                              11
underlying his second adjudication. Therefore, that custody time is solely attributable to
an offense for which appellant was committed to DJJ, and he is entitled to custody credit
for that time. Second, appellant was continued on probation following his 2005
adjudication of his second offense, and subsequent periods of confinement were based in
part on violating probation in that case. Moreover, appellant later suffered his third and
fourth adjudications, and subsequent periods of confinement preceding his commitment
to DJJ in 2009 were also based, in part, on those adjudications. Thus, his confinement
following his arrest for his second offense and preceding his DJJ commitment were
attributable in part, but not solely, to his commitment offenses, and accordingly, he is not
entitled to credit for that time.
       The question that remains is whether appellant is also entitled to credit for his time
in custody from November 5, 2009, the date he was committed to DJJ, through December
28, 2011, the last day he was confined in DJJ, a total of 784 days. Although Bruner deals
with presentence custody, and here we consider whether appellant should be credited for
the juvenile equivalent of postsentence custody, the principle underlying Bruner, i.e., that
a person confined is entitled to credit for confinement time solely attributable to the
conduct for which he or she is sentenced, applies. As the court stated in People v.
Buckhalter (2001) 26 Cal.4th 20: “Everyone sentenced to prison for criminal conduct is
entitled to credit against his term for all actual days of confinement solely attributable to
the same conduct. ([Pen. Code,] §§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b); see
Bruner, supra, 9 Cal.4th 1178, 1180.)” (Id. at p. 30.) Appellant was committed to DJJ
based on only the commitment offenses, and therefore, his time in custody following his
commitment to DJJ is attributable solely to those offenses. In order to comply with the
directive of section 731(c) that a minor may not be held in custody for a period of time in
excess of the time an adult convicted of the same offenses as the minor could be confined



                                              12
in prison, appellant must be credited for his time in custody following his commitment to
DJJ.
Conclusion
       On this record then, the first of the maximum periods required to be determined
under section 731(c)—appellant’s “maximum period of imprisonment”—is four years
four months, less 821 days of custody credit (37 days of precommitment credit plus 784
days of postcommitment credit). As indicated above, under section 731, this first
determination sets the ceiling for the next maximum period to be determined under the
statute. The correct approach for a juvenile court determining the length of appellant’s
probationary period under section 1766.01 would be first to perform the foregoing
analysis and then move to the second determination required by section 731(c), i.e., the
determination, in the exercise of the court’s discretion, of “the maximum term of physical
confinement set by the court based upon the facts and circumstances of the matter or
matters that brought or continued the ward under the jurisdiction of the juvenile court,
which may not exceed the maximum period of adult confinement ....” (§ 731(c); see
Carlos E., supra, 127 Cal.App.4th 1529.)
       It is apparent from the foregoing that appellant’s claim that his probationary
period, as a matter of law, should be set at four years four months, less 1,524 days of
credit, is without merit. However, from an examination of the record it is also apparent,
as we explain below, that the juvenile court’s determination of appellant’s probationary
period—16.3 months, calculated by crediting appellant with 31.7 months (951 days) in
custody against a total term of 48 months—cannot stand.
       At the reentry disposition hearing, defense counsel argued as follows: Appellant
was committed to DJJ based, in part, on his first offense, and all of his confinement time
was attributable in part to violating probation imposed based on that offense. Therefore,
appellant’s probationary period should be calculated by subtracting from the maximum

                                            13
term of imprisonment declared by the court upon appellant’s 2009 commitment to DJJ—
four years four months—all time appellant had spent in custody.
       The juvenile court rejected this argument. The court stated the following: It
would “treat the 245(a)(1) [appellant’s fourth offense] as an independent event” for
which appellant’s time in custody must be “treat[ed] ... separately”; appellant’s “max
confinement time just for that one charge is 48 months”; following his arrest on that
offense on May 29, 2009, he was confined, in juvenile hall and DJJ, for 951 days—or
31.7 months, calculated by dividing 951 by 30; and therefore his probationary period
should be 48 months, less 31.7 months, i.e., 16.3 months.
       The foregoing—notably, the court’s apparent determination of four years, rather
than four years four months, as the longest period of probation it could conceivably
impose, and the absence of any mention of the uncodified statement of legislative intent
of section 1766.01 or of section 731—demonstrates that the juvenile court did not
determine appellant’s probationary period by making the two determinations required by
section 731(c). Accordingly, we will remand the matter to allow the court to determine
the length of appellant’s probationary period under section 731(c), as required under
section 1766.01. (Cf. People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [“Defendants
are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of
the sentencing court,’ and a court that is unaware of its discretionary authority cannot
exercise its informed discretion”].)6


6       We recognize that the probationary period ordered by the court—16.3 months—is
less than appellant’s section 731(c) maximum term of imprisonment, i.e., four years four
months less 821 days, or slightly over 27 months, using the juvenile court’s calculation
method of dividing the applicable custody credits by 30. However, remand is appropriate
because it is possible that on remand, the court, in the exercise of its discretion, may
impose a probationary period of less than 16.3 months. We of course express no opinion
as to how the court should exercise its discretion.


                                             14
                                      DISPOSITION
       The court’s order setting appellant’s probationary period at 16.3 months is
reversed. The matter is remanded for a new reentry disposition hearing. At that hearing,
the court shall set the length of appellant’s probationary period by conducting the two-
step process discussed here, as follows: The court shall first set appellant’s Welfare and
Institutions Code section 731, subdivision (c) (section 731(c)) “maximum period of
imprisonment” at four year four months, less 821 days of custody credit. The court shall
then set appellant’s probationary period in the same manner it would set a maximum term
of physical confinement under section 731(c), i.e., in the exercise of its discretion, after
considering the facts and circumstances of the matters for which appellant was committed
to the Department of Corrections and Rehabilitation, Division of Juvenile Justice.
Appellant’s probationary period may be less than, but may not exceed, the maximum
period of imprisonment, and the court is not restricted by the sentencing triad for
appellant’s felony commitment offense.




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