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In re Edward Q.

September 17, 2009

IN RE EDWARD Q., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EDWARD Q., DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Orange County, Robert Byron Hutson, Judge. Reversed and remanded with directions. Request for judicial notice. Granted in part and denied in part. (Super. Ct. No. DL028854).

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

Edward Q. was alleged to have brought marijuana into juvenile hall, in violation of Penal Code section 4573. The juvenile court found the allegations against Edward true, and he appealed.

In a case of first impression, we hold a person who brings a controlled substance or other contraband into juvenile hall is properly charged under Welfare and Institutions Code section 871.5, not Penal Code section 4573. We therefore reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On September 18, 2008, the district attorney filed a subsequent delinquency petition (the second petition) alleging Edward had committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) [count 1]); committed battery on a peace officer (id., § 243, subd. (b) [count 2]); and resisted arrest (id., § 148, subd. (a)(1) [count 3]).*fn1

Edward was remanded to the custody of the sheriff, and detained at juvenile hall.

Edward underwent a standard search at the intake and release center at juvenile hall. A deputy juvenile correctional officer found a small baggie containing a usable amount of marijuana concealed in Edward's shoe. Edward told the officer he had loaned his shoes to a friend, who had returned them to Edward the previous night by handing them through a window. Edward claimed he did not know the baggie of marijuana was in his shoe.

The district attorney filed a third petition against Edward, alleging he had violated Penal Code section 4573 by knowingly bringing a controlled substance into juvenile hall.

The juvenile court found the allegations of the third petition and the allegations of counts 1 and 3 of the second petition true beyond a reasonable doubt, and declared Edward a ward of the court.*fn2 Edward was committed to juvenile hall for a period of 90 days, with credit for 37 days previously served, and this appeal followed.

DISCUSSION

Edward argues the juvenile court improperly found the allegations of the third petition true because he did not voluntarily, affirmatively, or knowingly enter juvenile hall while in possession of marijuana. He does not challenge the juvenile court's findings on counts 1 and 3 of the second ...


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