Filed 4/23/13 In re Anthony S. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE



In re Anthony S., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
     Plaintiff and Respondent,
                                                                     A135967
v.
Anthony S.,                                                          (Sonoma County
                                                                     Super. Ct. No. 35556-J)
         Defendant and Appellant.

         After participating in a gang-related attack and being found in possession of
marijuana, defendant was re-adjudged a ward of the juvenile court. Various probation
violations followed, and the court authorized, prior to his 18th birthday, the prospect of
incarceration in adult jail. On appeal, defendant challenges the adult jail authorization
and the length of his commitment. He also claims the court failed to correctly calculate
his maximum term of confinement and his custody credits. We modify the judgment to
strike the portion of the order relating to an adult jail commitment. We also modify it to
correct defendant’s presentence custody credits, and affirm the judgment as modified.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
         On June 3, 2010, defendant and group of juveniles surrounded, threatened, and
pushed a couple who had objected to the teenagers’ loud, drunken behavior at their
apartment complex. The woman who was threatened was clearly pregnant. The
juveniles yelled “Norte” several times. All seven suspects were arrested and detained at
juvenile hall.
       On June 4, 2010, the district attorney filed a wardship petition under Welfare and
Institutions Code section 602,1 alleging that defendant, then age 15 and previously a ward
of the juvenile court, was involved in a public fight. The offense was charged as a felony
due to a gang enhancement. (Pen. Code, §§ 415, subd. (1), 186.22, subd. (d); Count 1.)
The petition also alleges defendant’s participation in a criminal street gang (§ 186.22,
subd. (a); Count 2), and that he had been in possession of not more than 28.5 grams of
marijuana (Health & Saf. Code, § 11357, subd. (b); Count 3).
       June 8, 2010, defendant admitted Count 1 in exchange for dismissal of Counts 2
and 3 and reinstatement of probation. The plea waiver form states that the potential
sentence on the admitted count was three years. Defendant’s initials are written next to
that calculation.
       On June 23, 2010, the juvenile court adjudged defendant a ward and found his
maximum term of confinement (MTC) to be 36 months. At that time, he was advised
that 35 months and 9 days’ confinement time was still available.
       On September 17, 2010, a notice of probation violation was filed alleging that
defendant had possessed gang paraphernalia, tested positive for illicit drugs, admitted to
consuming alcohol, and failed to complete any community service hours.
       On September 20, 2010, defendant admitted violating probation. He was retained
a ward of the court, and ordered placed in a residential treatment program.
       On September 30, 2010, defendant was placed at the Wilderness Recovery Center
(WRC).
       On February 7, 2011, a notice of probation violation was filed after defendant was
terminated from WRC for ongoing noncompliance, gang posturing, and vandalism of
group home property. The petition was dismissed and he was again ordered to suitable
placement.

1
  All further statutory references are to the Welfare and Institutions Code except as otherwise
indicated.

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          On February 14, 2011, defendant was placed at Mary’s Help Group Home.
          On April 21, 2011, another notice of probation violation was filed after defendant
absconded while being transported to juvenile hall due to behavioral issues in the group
home. He was arrested on April 27, 2011.
          On April 29, 2011, the petition was dismissed and defendant was again ordered
into placement.
          On May 5, 2011, defendant was placed at Our Common Ground. During his time
there, he graduated from high school and was successfully discharged from the program
on January 5, 2012.
          On January 31, 2012, a notice of probation violation was filed alleging defendant
had left home without permission and failed to contact probation.
          On February 2, 2012, defendant admitted violating probation. He was released
from juvenile hall to community detention on February 21, 2012.
          On March 21, 2012, a notice of probation violation alleged that defendant tested
positive for marijuana. The following day, he admitted the violation and was continued a
ward and ordered to serve 30 to 35 days in juvenile hall. He was released on April 20,
2012.
          On May 7, 2012, a notice of probation violation was filed alleging that defendant,
then age 17, left home without permission, tested positive for marijuana, possessed and
consumed alcohol, and failed to attend his counseling program. A warrant issued for his
arrest.
          On June 5, 2012, defendant, who was wearing gang attire and was with two
acknowledged Norteño associates, was detained while sitting on a bench covered with
black-marker gang tags in a park known to be frequented by Norteño gang members.
Appellant was carrying a red folding knife, a marijuana pipe, and a black marking pen.
Although he gave a false name to the police, they recognized him from prior arrests.
          On June 7, 2012, defendant admitted violating probation as alleged in the May 7,
2012 notice of violation. The warrant was recalled and he was detained in juvenile hall
pending disposition.

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       A supplemental disposition report filed by the probation department on June 21,
2012, recommended defendant serve a juvenile hall commitment of 150 to 180 days, with
17 days’ credit for time served. An attached worksheet notes 31 months and 23 days
remained of his MTC.
       At the dispositional hearing on June 21, 2012, the juvenile court pronounced its
order as follows: “But the Court is going to order that the minor be retained a ward of the
court; that, in addition to the time that he has served, that he serve an additional 365 to
841 days. [¶] So if you mess up in the hall or MADF [Main Adult Detention Facility], if
you get detained there, they can keep you in for a long, long time. That will begin
forthwith. All other orders not in conflict will remain in full force and effect. And all
juvenile court proceedings will be dismissed upon his completion of time in juvenile hall
or the Main Adult Detention Facility.” The dispositional order in the record on appeal
states: “JUVENILE HALL TIME/JAIL TIME: In addition to previous time Minor shall
be committed to Juvenile Hall for 365 to 841 days. . . . Time to be served forthwith. . . .
Other: Any penal institution including MADF.” (Italics added.) This appeal followed.
                                         DISCUSSION
I. Standard of Review
       Typically, a juvenile court’s dispositional order is reviewed for an abuse of
discretion. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) An abuse of
discretion exists when a lower court’s actions exceed or transgress the limitations of the
applicable law. (See Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 862.)
II. Confinement in Any Penal Institution Including MADF
       It is settled that a juvenile court cannot order even 18-year-old wards directly to
county jail. (In re Ramon M. (2009) 178 Cal.App.4th 665, 674; see § 202, subd. (e).)2
Only after a ward turns 19 can a juvenile court, upon the recommendation of the
2
  Sanctions permissible at disposition are: “(1) Payment of a fine by the minor. [¶] (2) Rendering
of compulsory service without compensation performed for the benefit of the community by the
minor. [¶] (3) Limitations on the minor’s liberty imposed as a condition of probation or parole.
[¶] (4) Commitment of the minor to a local detention or treatment facility, such as a juvenile hall,
camp, or ranch. [¶] (5) Commitment of the minor to the Division of Juvenile Facilities,
Department of Corrections and Rehabilitation.” (§ 202, subd. (e).)

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probation officer, transfer the ward to the custody of the sheriff. (§ 208.5; In re Charles
G. (2004) 115 Cal.App.4th 608, 618–619 (Charles G.).)3 Here, defendant was 17 years
old at the time of disposition. He turned 18 in October 2012, and will turn 19 in October
2013. He will therefore turn 19 eleven months before the maximum term of 841 days
expires. We agree with defendant that the dispositional order, as worded, leaves open the
possibility that the minor could be detained at county jail during his wardship, which is
not authorized by statute under the circumstances of this case. (See In re Kenny A.
(2000) 79 Cal.App.4th 1, 6 [dispositional order committing an 18-year-old to county jail
is unauthorized by statute].) Accordingly, the order constitutes an abuse of discretion.
       To correct the dispositional order, defendant asserts that the entire phrase, “any
penal institution including MADF” must be stricken. (Italics added.) The People note
that the phrase “any penal institution” appears on the written dispositional order in the
record, but was not part of the juvenile court’s oral dispositional order. For that reason,
the People concede the phrase “any penal institution” may be stricken from the written
dispositional order, an action that this court has the authority to do under our inherent
power. (See Pen. Code, § 1260.) The People, however, also contend that the written
reference to “any penal institution” is not an unauthorized sentence, relying on Charles
G., supra, 115 Cal.App.4th 608, 612. The contention lacks merit.
       In Charles G., the defendant was adjudged a section 602 ward at age 15. (115
Cal.App.4th 608, 612.) When he was 20 years old and still on probation, he admitted a
probation violation after testing positive for drugs. The appellate court found his
commitment to an adult facility was permissible. (Ibid.) Unlike the defendant in Charles
G., however, in the instant case defendant violated probation while he was still a minor.
       Juvenile wards may be housed in juvenile hall until they are 19. (§ 208.5, subd.

3
 Section 208.5, subdivision (a) states, in part: “Notwithstanding any other law, in any case in
which a minor who is detained in or committed to a county institution established for the purpose
of housing juveniles attains 18 years of age prior to or during the period of detention or
confinement he or she may be allowed to come or remain in contact with those juveniles until 19
years of age, at which time he or she, upon the recommendation of the probation officer, shall be
delivered to the custody of the sheriff for the remainder of the time he or she remains in custody,
unless the juvenile court orders continued detention in a juvenile facility.”

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(a).) As the appellate court stated in In re Kenny A., “section 208.5 does permit housing a
ward in county jail under certain circumstances, but it does not allow the juvenile court to
commit an 18-year-old to county jail as part of its disposition order. Instead, the statute
permits an 18-year-old ward to remain in a county institution for juveniles until age 19.
The statute permits even a 19-year-old ward to remain in a juvenile facility if the court so
orders.” (In re Kenny A., supra, 79 Cal.App.4th 1, 6.) We will thus order the entire
phrase “any penal institution including MADF” stricken from the juvenile court’s
dispositional order.
III. Length of Sentence
       The juvenile court ordered defendant to serve 365 to 841 days (12 to 28 months).
The dispositional order also provides for no early release and no good time credit.
Defendant contends the juvenile court abused its discretion when it imposed such a
lengthy sentence.
       A juvenile court has substantial discretion in crafting dispositions within the
statutory authorization provided in section 202. (See In re Eddie M. (2003) 31 Cal.4th
480, 507.) Defendant admits “No published authority addresses a lengthy juvenile hall
commitment as a valid order of wardship probation.” We have summarized his extensive
history with the juvenile justice system. While he achieved some success at Our
Common Ground, including graduating from high school, he continued to violate his
probation after he left that program. Thus, it is understandable that the juvenile court felt
it had no other option than to order him to serve a lengthy juvenile hall commitment. We
therefore conclude the court did not commit an abuse of discretion in ordering him to
serve a minimum of 365 days in juvenile hall.
IV. Calculation of Defendant’s MTC
       Defendant claims the juvenile court erred in failing to calculate his MTC and
failing to apply credit for time spent in custody prior to disposition. As noted above, a
worksheet attached to the supplemental disposition report states that 31 months and 23
days remained of defendant’s MTC. Defendant does not contest this calculation, and the


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dispositional order does not exceed that limit. Further, defendant at all times during this
wardship proceeding was aware that he was subject to a three-year MTC.
       The People concede defendant is entitled to predisposition custody credit. We
agree with defendant that he is entitled to 17 days of credit.
                                      DISPOSITION
       The judgment of wardship is modified to strike “any penal institution including
MADF” from the June 21, 2012 dispositional order. The order is also modified to reflect
defendant is entitled to 17 days of credit. As so modified, the judgment of wardship is
affirmed.


                                                  __________________________________
                                                  Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




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In re Anthony S.; People v. Anthony S., A135967




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